[1] Standard for determining the identity of an invention under Article 29(3) of the former Patent Act with respect to an expanded earlier application

[2] The case holding that the judgment below erred by misapprehending the legal principle on the ground that the patented invention whose name is “chloychhychhyhyhyh" differs from the technical composition, and the patented invention has a new effect to improve the solidness of chlochypyhyhyhyhyhyhs, unlike the comparable invention, and the difference

[1] The identity of an invention under Article 29(3) of the former Patent Act (amended by Act No. 7871 of Mar. 3, 2006) as to an expanded earlier application is distinct from the inventive step, and the technical composition of the two inventions is identical, and the effects of the invention are also considered. Even if the technical composition differs, if the difference is merely an addition, deletion, or modification of widely known and commonly used technology, and it is merely an insignificant difference that does not generate new effects, both inventions are substantially identical. However, if the difference between the technical composition of the two inventions exceeds the aforementioned degree, it cannot be said that the difference is identical to the two inventions even if the difference is within the scope easily derived by a person with ordinary knowledge in the art to which the invention pertains.

[2] The case holding that the court below erred by misapprehending the legal principle on the ground that the "brupt" of the patented invention whose name is "chlost" and the "brupt display" of the comparable inventions corresponding thereto are different from the technical composition, and that the difference cannot be deemed as merely an addition, deletion, and modification of widely known and commonly used technology in specific means to solve the task, and that the patent invention has a new effect to improve the solidness of chlom-brut, unlike the comparable inventions, in the case of the patented inventions, since there is a new effect to improve the solidness of chlom-brut,

[1] Article 29 (3) of the former Patent Act (amended by Act No. 7871 of March 3, 2006) / [2] Article 29 (3) of the former Patent Act (amended by Act No. 7871 of March 3, 2006)

[1] Supreme Court Decision 98Hu1013 decided Jun. 1, 2001 (Gong2001Ha, 1537) Supreme Court Decision 2006Hu1452 decided Mar. 13, 2008

Plaintiff (Patent Attorney Yu-ho, Counsel for the plaintiff-appellant)

Defendant (Patent Attorney Lee Byung-il, Counsel for defendant-appellant)

Patent Court Decision 2010Heo1015 decided July 9, 2010

The judgment below is reversed, and the case is remanded to the Patent Court.

The grounds of appeal are examined.

1. The identity of an invention as provided by Article 29(3) of the former Patent Act (amended by Act No. 7871 of Mar. 3, 2006; hereinafter the same) regarding an expanded earlier application is distinguishable from the inventive step, and the technical composition of both inventions is identical or not, taking into account the effects of the invention. Even if the technical composition differs, if the difference is merely an addition, deletion, or modification of widely known and commonly used technology, and it is merely an minor difference that does not have new effects, both inventions are practically identical (see, e.g., Supreme Court Decisions 98Hu1013, Jun. 1, 2001; 2006Hu1452, Mar. 13, 2008). If the technical composition of both inventions deviates from the aforementioned degree, if the difference between the technical composition of both inventions exceeds the aforementioned degree, it cannot be easily determined that the difference between the two inventions belongs to the person having ordinary knowledge in the art (hereinafter referred to as “the invention”).

2. In the instant patent invention (patent registration number No. 69298) Claim 1 (hereinafter “Claim 1 invention of this case,” and other claims are indicated in the same manner), the core (1) is connected to the inner part of the wall (2) to the reinforcement test (3a) as a single body of cosphering shape. On the other hand, in the cited invention of this case, the upper part (21) (22) corresponding to the core (1) is separated from the upper part and the lower part (16) (17) invention of this case’s patent invention of this case’s (patent registration number No. 69298), the core is connected to the inner part of the patent invention of this case’s (patent registration number No. 69298), and the core is connected to the upper part (hereinafter “instant Claim 1 of this case’s patent registration number, and the other claims are indicated in the same way). However, the two inventions are not different from the technical composition of the invention in this case’s technical composition, and it is not only more than the 3rd and new shape (2).

In addition, insofar as the instant Claim No. 1 invention cannot be deemed the same as the cited invention, the instant Claim Nos. 2 and 3 inventions, which are subordinate claims citing the instant Claim No. 1 invention, cannot be deemed the same as the cited invention.

Nevertheless, the court below judged that the technical composition of the patented invention of this case and the comparable invention of this case are substantially identical to the invention on the ground that the difference in the technical composition of the patented invention of this case is merely a change to the extent that ordinary technicians ordinarily employ, and that such change does not cause any special difference in the operational effect. In this regard, the court below erred by misapprehending the legal principles as to the identity of the invention under Article 29(3) of the former Patent Act, which affected the conclusion

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee In-bok (Presiding Justice)