[1] Method of determining the scope of a utility model right

[2] The case holding that the inventive step in the registered device, which is a mobile learning board, is recognized

[1] In the description of a specification of a utility model, where the technical composition of a utility model is not known or even if it is possible to know even if the technical scope can not be determined, the technical scope or the scope of the right of a utility model shall be interpreted by supplementing other parts of the specification or the specification. Even if the effects of a device not directly described in the specification column, if it is possible for a person with ordinary knowledge in the art to easily recognize the device from the objective composition of the device described in the detailed description or drawing, the determination of inventive step may be taken into account by recognizing it as the action effect of the device.

[2] The case holding that since the registered device, which is a mobile learning board, is different in terms of the cited device and its purpose, composition, and effect, a person with ordinary knowledge in the technical field to which the device pertains, could not easily create the device on the basis of the cited device

[1] Articles 5(2), 9(4), 42, and 50 of the Utility Model Act; Article 97 of the Patent Act / [2] Article 5(2) of the Utility Model Act

[1] Supreme Court Decision 90Hu1499 delivered on November 26, 1991 (Gong1992, 305), Supreme Court Decision 91Hu1809 delivered on June 23, 1992 (Gong1992, 2279), Supreme Court Decision 94Hu1787 delivered on December 12, 1995 (Gong196Sang, 395), Supreme Court Decision 96Hu1040 delivered on April 10, 1998 (Gong198Sang, 1361), Supreme Court Decision 98Hu2351 delivered on November 14, 200 (Gong201, 655), Supreme Court Decision 2008Hu28539 delivered on June 13, 201 (Gong201, 2035, 205Hu1363639 delivered on June 23, 201)

Plaintiff

The Intervenor succeeding to the Plaintiff (Patent Attorney Kim Won-sik, Counsel for plaintiff-appellant)

Busan High School Co., Ltd. and three others (Patent Attorney Jeong Young-gil, Counsel for the defendant-appellant)

Patent Court Decision 2002Heo1621 delivered on December 5, 2002

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

1. As to the second ground for appeal

A. In the description of a specification of a utility model, where the technical composition of a utility model is not known or the technical scope can not be determined even if the description of a utility model is known, if the technical composition of the utility model can not be determined, the technical scope or the scope of the right shall be interpreted by supplementing other parts of the specification (see, e.g., Supreme Court Decisions 94Hu1787, Dec. 12, 1995; 2001Hu935, Apr. 12, 2002). Even if the effects of a device not directly described in the description of the specification can be easily recognized by a person having ordinary knowledge in the technical field from the objective composition of the device described in the detailed description or drawing, if the effects of the device can be easily recognized by the person having ordinary knowledge in the technical field, then it may be considered as the effects of the device's action.

B. In this regard, the court below recognized that the effect of extending the number of the learning board by demolishing the learning board and replacing it with a new protective film can be achieved, and there is no violation of the rules of evidence or incomplete deliberation on the technical composition and effects of the registration in this case, as otherwise alleged in the ground of appeal, it cannot be deemed that there is an error of law in violation of the rules of evidence or incomplete deliberation, even if the protective film changes using a mash pentle frequently. In addition, if the protective film changes, the court below recognized that the effect of extending the number of the learning board by replacing it with a new protective film.

2. Regarding ground of appeal No. 1

In a lawsuit seeking the revocation of a trial decision which is an administrative litigation, the principle of pleadings is applied in principle (see Supreme Court Decision 2000Hu1542, Dec. 22, 2000), but the record reveals that the court below recognized the composition attached with a protective film on the lecture board that dealt with the legal ditch as the constituent elements of the registered petition of this case, and that the effect of protecting the legal aspect of the learning board and extending the number of the learning board as a result of the extension of the number of the learning board by systematically combining these components with other components is based on the facts alleged by the plaintiff succeeding intervenor and the contents stated in the above public disclosure report as to the registered petition of this case. Thus, the court below did not err in violating the principle of pleading by recognizing the facts that the parties did not claim or did not based on evidence, as alleged in the grounds of appeal.

3. As to the third ground for appeal

A. According to the reasoning of the lower judgment, the lower court determined as follows, based on the reasoning of the lower judgment, as follows: (a) the proposal of the instant registration was inserted in publications distributed prior to the filing of the application as indicated in the lower judgment.

(1) The instant registered device and the cited device are all related to learning plates, and the subject technical field is identical and among the purpose of the instant registered device, the purpose of which is to provide learning plates that can be used in two sides and moveable depending on necessity is identical to the cited device 2. However, the purpose of preventing the reduction of the number of learning plates by putting them in the legal framework of the learning board, is not to the cited device 1 and 2.

(2) On the other hand, the registered device of this case is a mere alteration that can easily be selected by a person with ordinary knowledge in the relevant field in accordance with the purpose of the use of the learning board, while it is not a composition of the cited proposal, but it is merely a simple alteration in the design that is easily selected by the person with ordinary knowledge in the relevant field.

(3) In addition, the instant registered device was formed by combining two learning plates, and the cited device 1 contains the two sides of learning plates that combine the iron plates on the front and rear sides of the lurg body, and the two devices overlap with two learning plates. However, while the instant registered device overlaps with the two learning plates, the cited device 1 is different in that the instant registered device combines the steel plates on the lurg body without the lurging system, while both devices are the same in that it prevents transformation by external force by increasing the thickness of the learning board, there is no special technical meaning in such difference.

(4) In addition, the instant registered device and the cited device 2 are identical in that both of the instant registered device and the cited device are fixed by inserting learning plates in a fixed framework in which both the inserted materials are inserted, and that they are mobile learning plates in which a fixed framework is installed on both sides of the fixed framework.

(5) However, the composition of attaching protective films on the lecture board processed with the law within the instant registered device is a new element that does not exist in the cited device, and that, in the event that the protective film changes by using the protective film, it can extend the number of learning plates by replacing only the protective film to a new one by combining it with the elements publicly known as above, it would have a difficult effect from the cited device.

(6) Therefore, since the instant registered device differs in terms of the nature, purpose, composition, and effect of the cited design 1, 2, and 2, it cannot be deemed that a person with ordinary knowledge in the technical field to which the device pertains can easily make a device by the cited design.

B. In light of the records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the determination of inventive step of a utility model as otherwise alleged in the ground of appeal.

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)