[1] In a case where the claims of a patented invention are limited to a certain scope of numerical value, whether the challenged invention as an element falls under the scope of the right of the patented invention (negative in principle)

[2] In the invention in question, the elements to regard the invention in question as falling under the scope of the right of the patented invention, and the meaning of "the principle of resolving the task is identical in the invention," and the method to determine whether the invention in question falls under the scope of the right of the patented invention

[3] The case holding that the invention in question, the name of which is "the manufacturing method of blood dust", falls under the scope of patent right of the patented invention, since the overall name of the invention is within the scope of equal technical composition with claims 1, 2 of the patented invention, which is "the method of manufacturing feed by treating organic waste at the moment of net temperature"

[4] In a case where a patentee or the licensee who has obtained permission from the patentee for the invention of a product or the process of manufacturing a product transfers an article produced by a patent or a patent method to Korea through a contract or an auction procedure, whether the patent right with respect to the article is exhaustion (affirmative)

[5] In a case where a patent right for an invention of a method is jointly owned in Korea, even if an article used exclusively for the implementation of such a method is transferred, if the article is owned by some of the co-owners and another co-owner who is not the owner of the article did not consent to the transfer of the article, whether the transferee or the subsequent purchaser is subject to the exhaustion of the patent right in relation to the execution of the method invention by using the article

[1] Where the claims of a patented invention are limited to a certain scope of the elements, barring special circumstances, such as that the scope and other figures constitute an equal element, the invention subject to confirmation, in principle, does not fall under the scope of the right of the patented invention, unless the scope and other figures are limited to the claims of the patented invention.

[2] Even in cases where there are parts of the composition or modification within the scope of the patent claim of the invention in question, if both inventions are identical to the solution principle of the task, even if it is based on such substitution, it can achieve the same purpose as the patented invention and practically the same effect as the patented invention, and if it is clear to the extent that any person with ordinary knowledge in the technical field to which the invention pertains can easily think, the invention in question shall be deemed to be equivalent to the composition stated in the scope of the patent claim of the patented invention as a whole and still belong to the scope of the patent right of the patented invention, unless there are special circumstances. However, the "the solution principle of the task is identical" in this context means that the composition of the challenged invention in question is an non-essential part of the patented invention, and in understanding the characteristic composition of the patented invention, the invention in question shall not extract parts of the composition described in the scope of the patent claim formally, but shall be determined by considering the detailed description of the invention in question and the prior art at the time of the application.

[3] The case holding that the invention subject to confirmation, the name of which is "the manufacturing method of blood dust", is somewhat different from the claim 1 and 2 of the patented invention, the name of which is "the method of manufacturing feed by treating organic waste satisfly," but despite the difference, the solution principle of the task is identical in the above inventions, despite the difference, the above inventions can achieve the same purpose as the above claims 1 and 2, even if they are refunded at the speed, they can achieve the same effect as the above claims 1 and 2, and show the same effect in substance, and thus, the substitution is clearly ordered to the extent that anyone can easily think if it is a person with ordinary knowledge in the technical field, and all the above claim 1, 2 and the technical composition are within the equally equal scope.

[4] In a case where a patentee or a licensee who has obtained permission from the patentee of a patent on an invention of a process of manufacturing a product or an invention of a process of manufacturing a product transfers the product produced by the patent or a process of patent to the Republic of Korea, the patent has already achieved the purpose of the patent on the relevant product. In addition, even in a case where a patentee of a process transfers an article used exclusively for the implementation of the process in Korea, the patent right has been established in relation to the invention of the process by the transferee or the subsequent purchaser. In light of the above legal basis of the exhaustion of the patent right, barring special circumstances, the doctrine of exhaustion of the patent right is applied not only

[5] In a case where a patent right for an invention of a process is jointly owned in Korea, even if an article used exclusively for the implementation of such a method is transferred, if the article is owned by some of the co-owners and another co-owner who is not the owner of the article did not consent to the transfer of the article, the patent right is not extinguished because the transferee or the subsequent purchaser used the article to implement the relevant method invention.

[1] Article 135 of the Patent Act / [2] Article 135 of the Patent Act / [3] Article 135 of the Patent Act / [4] Article 127 subparag. 2 of the Patent Act / [5] Article 99

[1] Supreme Court Decision 99Hu2372 Decided August 21, 2001 (Gong2001Ha, 2116), Supreme Court Decision 2003Hu656 Decided April 29, 2005 (Gong2005Sang, 868) / [2] Supreme Court Decision 2000Hu3517 Decided August 23, 2002 (Gong2002Ha, 2245) Supreme Court Decision 2001Hu171 Decided September 6, 2002 (Gong202Ha, 2452), Supreme Court Decision 2007Hu3806 Decided June 25, 2009 (Gong2009Ha, 1239)

Plaintiff 1 and 1 (Patent Attorney Cho Jae-soo, Counsel for the plaintiff-appellant)

Defendant (Patent Firm AM, Patent Attorney Kim Jong-soo, Counsel for defendant-appellant)

December 4, 2009

1. The decision made by the Intellectual Property Tribunal on October 29, 2008 on the case No. 2007DaDa2791 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

[Ground of recognition] Unsatisfy, Gap evidence 1, 2, 3

A. The plaintiffs' patented invention

(a) Name: The method of manufacturing feed by treating organic wastes at a low temperature;

(2) Date of application (date of priority claim) / Registration date / Registration number: June 24, 1996 ( June 28, 1995) / November 23, 1998 / No. 178505, Nov. 23, 1998

(3) Claims and drawings: as described in [Attachment 1] (hereinafter the plaintiffs' patented invention is referred to as "the patented invention of this case", and each claim of this case shall be reduced in the same manner as "claim 0 invention").

(b) An invention subject to verification;

The invention subject to confirmation is "the method of manufacturing blood feed", and the description and drawings thereof are as shown in attached Form 2.

C. Details of the instant trial decision

(1) On October 11, 2007, the Plaintiffs asserted that the invention subject to confirmation under the Intellectual Property Tribunal No. 2007Da2791 was identical with claims 1, 2, and the technical composition of the instant patent invention, and filed a claim to confirm the scope of right, and that the invention falls under the scope of right.

(2) On October 29, 2008, the Korean Intellectual Property Tribunal rendered the instant trial ruling dismissing the Defendant’s request on the ground that the invention in question does not fall under the scope of the right to claim 1 and 2 inventions, although the claim 1 and 2 inventions are identical or equal to the technical composition of the claim 1 and 2 inventions. However, since the Plaintiffs’ patent rights to each of the above inventions have already been established in relation to the Defendant’s invention in question, the challenged invention is not subject to

2. Whether the invention subject to confirmation falls under the scope of a right in the same or equal claim 1 or 2 as the technical composition of the invention subject to confirmation;

(a) Analysis of components of claims 1 and 2;

Invention 1 invention is a method of manufacturing feed with 110°C and 175's dried dried dried dried dried dried dried dried dried dried dried dried dried dried from the heat wind of 280°C or 330°C to high speed 3,00 mp, together with a heat wind dried dried dried dried dried dried dried dried dried Dried Sheet Sheet Sheet dried dried at a drying room where organic waste dried 110°C and 175's dried dried dried dried dried dried 13% from the dried dried dried dried Sheet 2 to 175's dried dried dried dried dried dried dried Sheet 3(hereinafter referred to as "Subject 3").

In addition, the claim 2 invention in the claim 1 invention, it is the method of manufacturing feed by treating the organic wastes of healthy food, such as food residues, beer and beer, cattle waste disposed of at slaughterhouses, internal organs of pigs, wrings, sap, sap, sap, and medicinal herbs, etc. (hereinafter “entent 4”).

(b) Preparation for technical composition;

(1) Preparation against components 1, 3, and 4

In components 1, the composition of "a preliminary building process to recover organic waste at a rate of 50% (No. 14. 3-4) of the invention subject to confirmation (No. 14. 1)" of the invention subject to confirmation (No. 3) and the composition of "a process to dry 2 seconds or 10 seconds in a drying room which is maintained at a rate of 110%) along with a heat, and build 12% or less of 12% of breds (No. 14. 6-7 of evidence No. 1) of the invention subject to confirmation (No. 14. 14. 1-2 of evidence No. 1)," and the component element 4 correspond to each of "a organic waste consisting of cattle and pigs disposed of at a slaughterhouse" (no. 14. 1-2 of the evidence No. 1). There is no dispute between the parties as to the fact that these corresponding components are substantially identical (the preparatory date for pleading).

(2) As to components 2

(A) Issues

In the component 2 of the challenged invention, the composition of the "a process to contacted and pulvere for about 1 second moment during high speed 1,450 mp from high speed heat inside and outside 300 cm of the challenged invention (A evidence 14-5 mp)" (except for the case where the speed of 3,000 mp and 1,450 mp are different from that of 1,450 mp, the Defendant is the one that these components are substantially identical (the date for preparatory pleading of October 15, 209).

However, barring special circumstances, such as that the scope of claims of a patented invention is limited to a certain scope of numerical value, the invention subject to confirmation, in principle, does not fall under the scope of the right of the patented invention, unless there is a special circumstance that the scope of claims of the patented invention constitutes an equal element (see Supreme Court Decisions 9Hu2372, Aug. 21, 2001; 2003Hu656, Apr. 29, 2005). Accordingly, we examine whether the numerical difference within the scope of equal technological constitution is within the scope of equal technological composition, in which the numerical difference is within the propelled speed, which the defendant raised.

(B) Determination

1) Legal principles

In a case where there are parts of the challenged invention in the patent claim of the patented invention, if both inventions are identical with the solution principle of the task, even if they are exchanged, if they are able to achieve the same purpose as the patented invention, have the effect of substantially identical with that of the patented invention, and such substitution is obvious to the extent that anyone can easily think if a person with ordinary knowledge in the art to which the invention pertains, it shall be deemed that the challenged invention falls under the one that could have easily made an invention from the known art, unless there are special circumstances such as where a person with ordinary knowledge in the art to which the invention pertains could easily make an invention from the known art at the time of the application of the patented invention, or where the exchanged composition of the challenged invention through the procedure for the application of the patented invention is an obvious exclusion from the patent claim, it shall be deemed that the whole invention is equivalent to the composition of the patent claim of the patented invention, and that the mere solution principle of both inventions in this context is identical to the specification of the patented invention at the time of the application of the patented invention, and it shall be determined not by the detailed description and specification of the patented invention.

2) Specific determination

A) According to the existing natural building method, direct building method, and indirect heat drying method in the feed manufacturing method using organic waste in this case, it is difficult to increase water minutes at the same time, and there is a lot of time for the inside of the surface due to high temperature temperature as it is difficult to transmit heat and spread water, and thus, it is difficult to use for long time for storage and use for long time, and there is a concern about the deterioration of nutrition due to long time exposure to heat. Thus, the Claim 1 and 2 invention transferred the processed feed to the first high temperature system of 280°30 x 330 mp from the first high temperature of 280° 3,00 mp from the first temperature of high temperature of 3,00 mp to the lower end of 10:10 to 3:25 mp from the first half of the dried feed to the lower end of 1:20 mp from the first half of 1:35 mp to the lower end of 1:15 m.

In light of the principle of solving the same task as the claim 1 and 2 inventions and the detailed description of the claims 1 and 2, in light of the fact that there is no particular technical explanation about the specific technical reasons with a specific speed of 3,00 mp, it is the technical significance in each of the above inventions that the speed of the feld's meeting of the feld's meeting of the feld's meeting with sufficient strength and frequency of organic waste, and that the feld's meeting of the feld's meeting of the feld's meeting of the feld's meeting of the short time of about about 1st century in order to ensure the rapid contact with each other. In order to achieve the purpose and effect of each of the above inventions, it is not necessary to limit the speed of feld's meeting to the specific value of 3,00 mp, such as its description, and it is merely one of the essential elements of each part of the invention's meeting of the feld's meeting.

B) However, as seen earlier, the invention subject to confirmation also consists of “the preliminary process of cutting down organic waste at a level of 50%, the process of crushing and crushing the waste from the waste 300°C, and the process of drying and crushing the waste from the 110°C to the 1,450mp from the high speed heat inside and outside the 300°C, and the process of manufacturing the waste from the 110°C, along with the heat, at the building room where the 110°C is maintained at a level of 110°, and the process of building the waste from the 2nd to 10% and then building the brine rate within 12%.” As such, there is no difference in the contact time of the dried organic waste, the temperature and drying time of the drying room, the manufacturing stage and order of the final produced feed, the process and order of manufacturing feed, etc., so that these problems are identical to these inventions.

In addition, as seen in the above, claims 1 and 2 specified the speed of feld in about 3,00 mp with a sufficient strength and frequency for organic wastes, there is a technical significance to move feld to a high speed to a high speed of feld in order to ensure the rapid contact and crushing of feld wastes at about 1 second time, and 1,450 mp in feld in feld in feld in the challenged invention is also identical with the speed of feld in claims 1 and 2 as seen earlier. Thus, there is a somewhat difference in the number of speed of feld wastes, but it is possible to achieve the purpose of the claim 1 and 2 and it indicates the same effect as the above inventions.

In addition, in the invention subject to confirmation, the speed of 1,450 mp in the end-time speed of the end-time propeller reaches 3,00 mp in Claim 1 and 2 at the end-time speed of the end-time propeller, and even if the end-time speed of the end-time propeller is lower than the above 3,00 mp in the end-time speed of 3,000 mp, there is no difference as seen above in accomplishing the purpose and effects of each of the above inventions. Thus, it is obvious that any person with ordinary knowledge in the technical field can easily think about the end-time speed of the end-time propeller in consideration of the shape, size, economic feasibility in the operation of facilities, etc.

C) As seen above, the running speed of the propeller in the invention in question is somewhat different from that of the 1,450 mp in Claim 1 and 2 inventions. However, despite the difference, the solution principle for the task is the same in these inventions, and even if the propeller's speed is changed from 3,000 mp to 1,450 mp, it can achieve the same purpose as the claim 1 and 2 inventions, and actually shows the same effect. If a person with ordinary knowledge in the technical field is able to easily think about the invention, any person with the same technology as the one already known in the technical field at the time of filing an application for the invention in this case, or a person with ordinary knowledge in the technical field of the invention in this case could have easily made an invention from the publicly known technology at the time of filing an application for the invention, or there is no special difference in the composition of the invention in question within the scope of the scope of the claim that is excluded from the composition of the invention in question through the procedure for the patent invention.

C. Sub-committee

Ultimately, the invention in question contains all identical or equal components of claims 1 and 2 with each element of claims 1 and 2, and as a whole, the invention in question is within the scope of equal technical composition with claims 1, 2 and 2. Thus, the invention in question belongs to the scope of rights of each invention in question.

3. Determination as to the defendant's assertion that there is no benefit in confirmation due to the exhaustion of a patent right

A. The defendant's assertion

In addition, the Defendant asserts that, inasmuch as the feed manufacturing facility (hereinafter “instant facility”) which was owned by Nonparty 1, one of the co-owners of the patent rights for claims 1 and 2, was transferred to the Defendant via Nonparty 2, the Plaintiffs’ patent rights for claims 1 and 2 should have already been advanced regarding the Defendant’s implementation of the challenged invention using the instant facility. Thus, the Plaintiffs’ filing of a request for a request for a trial for confirmation of the scope of right based on the instant patent right is unlawful as there is no benefit of confirmation.

B. Determination

(1) Legal principles

(A) the exhaustion of a patent right to an invention of a process;

If a patentee or a licensee of a process of manufacturing a product transfers the product manufactured by a patented product or a patent method to the Republic of Korea, the patent right has already achieved its purpose. If a patentee of a process invention transfers the product to the Republic of Korea only, the transferee and the subsequent purchaser shall take over the product from the patentee and the transferee on the premise that the patent can use the product. Therefore, if the granting of the patent right is required when executing the invention of the process using the product, the free distribution of the product in the market would be impeded, and as long as the patentee has de facto exclusive control over the right to transfer the product in accordance with Article 127 subparagraph 2 of the Patent Act, it is possible to determine the transfer value of the product including the consideration of the patent license granted by the transferee or subsequent purchaser, and thus the opportunity to secure the consideration for disclosure of the patented invention is sufficiently guaranteed, considering that the patent right should not be applied to cases where the transferee or subsequent purchaser takes advantage of the product in question and the subsequent purchaser is related to the transfer of the product in accordance with the auction procedure.

(B) The exhaustion of patent ownership and method patent

However, in cases where a patent right for a method invention is jointly owned in Korea, even if a product used exclusively for the implementation of the method is transferred, if the product is owned by some of the co-owners and another co-owner who is not the owner of the product does not consent to the transfer of the product, considering the following, the patent right shall not be extinguished because the transferee or the subsequent purchaser uses the product in relation to the implementation of the method invention.

In other words, the Patent Act stipulates that each co-owner of a patent can work the patented invention without the consent of the other co-owners (Article 99(3) of the Patent Act). However, in the case of a method invention, the essential contents of the patent license are to use the patented method itself, and it is not to manufacture and sell goods used exclusively for the working of a method patent, and it cannot be said that the act of manufacturing and transferring such goods is necessarily accompanied or expected in the working of a method patent. Thus, the above provision that each co-owner can work the patented invention without the consent of the other co-owners, and the above provision that each co-owner can work the patented invention by manufacturing and selling goods used exclusively for the working of a method patent cannot be said to be a provision guaranteeing the patent license of each co-owner.

In addition, if a joint owner of a patent grants a patent right to transfer or grant a license to a third party without any restriction, the transferee of the patent right’s share or new licensee’s capital, technical capacity, and credit may infringe on the interests of the other joint owners. Thus, in order to protect the interests of joint owners of the patent right, each joint owner may not transfer or establish a pledge on the patent’s share without the consent of the other joint owners, and may not grant an exclusive license or a non-exclusive license to the patent right without the consent of the other joint owners (Article 99(2) and (4) of the Patent Act). However, in the invention of a method, if an article is transferred without the consent of the other joint owners, the transferee of the article is used only for the working of the method of the patent, and if the patent right is established by the patent right’s working method of the invention or product obtained as a result of the patent right’s working of the invention, and if the result of the patent owner’s continuous use of the article can only be seen as one of the joint owners’ acquiring and selling the article without consent.

(2) Judgment in this case

(A) Facts of recognition

[Ground of recognition] Facts without dispute, Gap evidence 2, 4, 5, 6-1, 2, the purport of the whole pleadings

1) On November 23, 1998, claims 1 and 2 filed for patent registration with three (3) non-party 3 corporation, non-party 1, and plaintiff 2 as co-owners. The non-party 3 corporation and non-party 1 transferred their co-ownership share in the patent to the plaintiff 1 on January 23, 2006.

2) The instant facilities were originally owned by Nonparty 1, which are used exclusively for the implementation of the instant Claim 1 and 2 invention. However, on March 22, 2004, Nonparty 2 purchased the instant facilities installed in the instant factory site and the instant facilities installed in the instant factory site in the front-nam-gun School in the real estate auction procedure (Seoul District Court Decision 2003Mata-1077 on March 22, 2004 (hereinafter referred to as “land number omitted) with the land for factory and the above ground factory, and around December 7, 2005, the said facilities were sold to the Defendant and the instant facilities were also transferred to the Defendant around that time.

(B) Whether the plaintiffs' patent rights related to the invention subject to confirmation by the defendant using the instant facilities have been extinguished

As seen above in the facts of recognition, the facility of this case was used exclusively for the implementation of the invention 1 and 2, and was originally owned by Nonparty 1, and was transferred to Nonparty 2 around March 22, 2004, and was subsequently transferred to Nonparty 2 around December 7, 2005. However, at the time the facility of this case was transferred to Nonparty 2, the patent right for the claim 1, 2 was owned by Nonparty 1, 3, and 23 at the time the facility of this case was transferred to Nonparty 2. There is no evidence to acknowledge that Nonparty 3 and Plaintiff 2 agreed to the transfer of the facility of this case.

Therefore, in light of the above legal principles as to the sharing of patent rights and the exhaustion of method patents, the defendant's patent rights on the plaintiffs' claims 1 and 2 with respect to the invention subject to confirmation using the instant equipment, so the defendant's assertion that the request for a trial on confirmation of the scope of patent rights in this case is unlawful as there is no benefit in confirmation due to the exhaustion of patent rights (On the other hand, according to the evidence Nos. 2 and 3, the non-party 1 allowed the non-exclusive license on the patent rights of claims 1 and 2 to the non-party 2 on February 19, 2004, and the non-party 2 transferred the non-exclusive license to the defendant on January 18, 2006. However, in granting the non-party 1's non-exclusive license, there is no evidence to acknowledge that the non-exclusive license was invalid because the non-exclusive license violated Article 94 (4) of the Patent Act and the non-exclusive license was transferred to the non-exclusive licensee on January 18, 20006.

4. Conclusion

Therefore, the decision of this case is unlawful because it has different conclusions, so the plaintiffs' claim seeking its revocation is justified, and it is so decided as per Disposition with the assent of all participating Justices.

[Attachment 1 and 2]

Judges Noh Tae (Presiding Judge)