The case holding that although the Korean Intellectual Property Trial and Appeal Board should have dismissed a request for correction to the extent that it did not change the substance of the case, it was illegal to have made a trial decision, even though it did not comply with the correction, even though it did not reject the request for correction.

The case holding that although the Korean Intellectual Property Trial and Appeal Board should have dismissed the correction, it was unlawful to have made a trial decision on the merits, even though it did not comply with the correction, since the subject matter of confirmation on the crosswalk warning and lighting device was not clearly defined to the extent that it can be compared with the registered device concerning the "stegr assembly, such as signal, etc. with a signal, etc. with a signal, etc. with a signal, etc. with a signal, etc. for the protection of pedestrians," since some composition of the subject matter is unclear.

Articles 135, 140, and 141 of the Patent Act

Kim Sang-hoon (Patent Attorney Cho Jong-ho, Counsel for the defendant-appellant)

Han-soo (Attorney Jeong-ho et al., Counsel for the defendant-appellant)

June 23, 2005

1. The decision made by the Intellectual Property Tribunal on September 24, 2004 on the case No. 2003Da945 is revoked;

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the instant trial decision

A. On May 13, 2003, the defendant claimed a trial to confirm the scope of the right within the registered complaint of this case, since the defendant's device concerning the " crosswalk warning and lighting device" (hereinafter referred to as the "design subject to confirmation") unlike the plaintiff's device concerning the "prefabricated of steel poles such as signal, etc. with lighting lighting, etc. for the protection of pedestrians" (hereinafter referred to as the "design subject to registration of this case"), there are differences in the shape and structure of the goods and their operating effects different from each other, and the Korean Intellectual Property Tribunal tried this as the case No. 203Da945 on September 24, 2004, there is no "signal, etc., which is an essential element of the claim No. 1 of the registered complaint of this case," and the claim No. 2 through No. 4 of this case is more concrete than the subordinate element of the claim No. 1 of this case, and thus, the defendant's claim subject to confirmation does not fall under the scope of the right of this case.

B. Details of the instant registered device, the instant device for confirmation, and the comparative device

(1) Details of the instant registered petition

(1) The name of the device: Iron-in assembly with signal lights, etc. to protect pedestrians.

(2) Date of application/registration date/registration number: March 8, 200/ June 8, 2000/No. 1931344

(3) Owner of utility model right: Plaintiff

(4) The scope of request: Attached Form 1.

(2) Summary of the motion for confirmation

Attached Form 2. The entry is as shown in Annex 2.

(3) Details of the comparative proposal

Attached Form 3. The entry is as shown in Annex 3.

[Evidence] Evidence Nos. 1 through 4, Evidence Nos. 1 and 2, and the purport of the whole pleadings

2. The parties' assertion

A. Summary of the plaintiff's grounds for revoking the trial decision

(1) The letter-type warning means (35) of the challenged device (hereinafter “the instant device”) sent signals to drivers by using the luminous body. As such, the instant device is identical to the signal, etc. of the instant device. As such, the instant device subject to confirmation includes all the elements of the instant device. Therefore, it falls under the scope of the right to the instant registered device.

(2) The instant registered device is applied to the vehicle signal, etc. located on the crosswalk, and the lighting is extended to the central department of the road, and the signal lights and lighting lights are attached to the intersection. However, the comparative device 1 is about the pedestrian signal, etc. installed on both sides of the crosswalks, and the comparative device 2 is not installed along with signal lights and lighting lights on both sides of the crosswalks, and the comparative device 2 does not correspond to the technologies publicly notified by the comparative device.

B. Summary of the defendant's assertion

(1) The instant registered complaint is accompanied by lighting along with a signal, etc., and is accompanied by lighting on the crosswalk, while the signal, etc., the instant complaint is not equipped with a signal, etc., and is installed separately from lighting, etc. even if the means of warning character are sent by signal, etc., the instant complaint subject to confirmation does not fall under the scope of the right to the instant registered complaint.

(2) The instant registered device consists of only technologies publicly announced prior to the filing of the application based on the comparable device, and thus, the scope of the right to the registered device cannot be recognized.

3. Determination on the legitimacy of the instant trial decision

A. First, we examine ex officio whether the challenged device is specified to the extent that it can be compared with the composition of the instant registered device.

(1) In filing a request for a trial to confirm the scope of the right of a petition for a utility model registration, the petition for the confirmation must be specifically specified to the extent that it can be compared with the registered petition, and even if the specific composition of the subject matter is not necessary, the detailed composition of the part corresponding to the elements of the petition shall be stated. The specific composition shall be required to determine the difference compared with the elements of the registered petition. If the petition for confirmation is unclear and it is not specifically specified to the extent that it can be compared with the registered petition, the Korean Intellectual Property Trial and Appeal Board shall take measures such as ordering the correction of the description and drawing of the petition to the extent that the summary is not changed. Nevertheless, if the technical composition of the petition for confirmation is not specified to the extent that it can be compared with the registered petition, it shall be dismissed, and if there is no clear doubt that the party's assertion is legitimate, the Korean Intellectual Property Trial and Appeal Board shall investigate it ex officio, and if there is no clear doubt as to whether the petition for confirmation is legitimate, it shall be determined by the Korean Intellectual Property Trial and Appeal Board.

(2) The elements of the instant registered appeal

The first device of this case is "limited to the structure where signal lights and signal lights are installed on the crosswalks with signal lights and signal lights installed along with the signal lights." The second device of this case is "limited to the structure where signal lights and signal lights are installed in the device of paragraph 1." In the second device, the second device of this case is "limited to the structure where signal lights and signal lights are installed in the pole". The fourth device of paragraph 1 or paragraph 2 is composed of "the signal lights are integrated control with signal lights by signal lights (10). The composition of the device of this case is "the signal lights" or "the new signal lights are installed by signal lights to be combined with signal lights" of paragraph 1 and paragraph 2. The second device of this case is "the new signal lights to be installed by signal lights" of paragraph 4. In addition, the second device of this case is composed of "the new signal lights to be installed by signal lights to be combined with signal lights and signal lights" of paragraph 1.

However, the device of Paragraph 1 of this case is merely a functional expression of the composition of signal lights and illumination lights, and the device of Paragraph 4 of this case includes the composition of signal lights and illumination lights. It is not a characteristic of the device of Paragraph 1 to Paragraph 3, but is an integrated device of Paragraph 4 of this case with signal lights. The device of Paragraph 1 of this case provides that "in addition, it is possible to realize its function only by functional expression of signal lights and illumination lights." With regard to Paragraph 4 of this case, it is desirable to separate installation of signal lights to ensure that signal lights can be used only at night time, or that it can be combined with existing street lights so that it can be integrated into an integrated system of paragraph 1 of this case with signal lights to ensure that the signal lights can be operated by an integrated system of paragraph 4 of this case (the combined system of signal lights).

(3) Whether the subject matter is specified

(A) The 'signal for signal lights' of the instant Claim 1 device is corresponding to the 'breadth (7) extending the road to the upper part of the pole (5) constructed on the side of the road where the crosswalk is located,' to the upper part of the pole (5) in which the instant Claim 1 device is located, and the 'Lighting light' of the instant Claim 1 device is corresponding to the ' large number of lighting lights (10) who lighting the crosswalk in the lower part of the confirmation.

나아가 이 사건 제1항 고안의 신호등이 확인대상고안의 '발광체를 이용한 문자형 경고수단'에 대응하는지 여부에 관하여 보건대, 신호등이란 일반적으로 '도로에 설치하여, 녹색ㆍ적색ㆍ황색 및 녹색 화살 표시 따위의 점멸로 통행 차량이나 사람에게 정지ㆍ우회ㆍ진행 따위를 지시하는 장치'를 의미하고, 신호등에 관하여 규정하고 있는 법규에는 도로교통법 제3조 에 "시장 등은 도로에서의 위험을 방지하고 교통의 안전과 원활한 소통을 확보하기 위하여 필요하다고 인정하는 때에는 신호기 및 안전표지를 설치하고 이를 관리하여야 한다."고 규정하고 있고, 도로교통법 시행규칙 제5조 에서는 신호기의 종류 및 그 만드는 방식을 규정하면서([별표 2]), 신호기가 표시하는 신호의 종류로서 녹색 등화, 황색 등화, 적색 등화, 녹색화살표시 등화, 적색 등화의 점멸, 황색 등화의 점멸 등을 규정하고 있으며([별표 3]), 도로교통법 시행규칙 제6조 에서는 신호기 중에서 신호등의 종류 및 만드는 방식, 설치기준을 규정하고 있는데, 신호등 중 차량에 대하여 지시하는 차량등으로 가변형 가변등, 경보형 경보등도 규정되어 있고, 그 중 가변형 가변등은 일자 또는 시간에 따라 교통량의 변동이 많은 간선도로 중 가변차로로 지정된 도로구간의 입구, 중간 및 출구에 설치하는 신호등으로서 등화를 'X'와 '↓'의 표시로 만들며, 경보형 경보등은 다른 신호기가 설치되지 아니하고 차량통행이 잦은 횡단보도 또는 교통사고 위험성이 있는 교차로에 설치하는 신호등으로서 둥근 하나의 등화로 만든다고 규정되어([별표 4]) 있는바, 이와 같이 일반적으로 신호등은 어느 신호를 지시하는 등화의 색깔과 작동방법은 특정되어 있으나, 신호내용이 특정한 것으로 한정되어 있지 않고, 신호의 전달이라는 기능적 특징 및 일정한 색깔의 발광수단의 구비라는 구조적 특징에 의하여 특정되는 장치로 보아야 하는 점에 비추어 보면, 확인대상고안의 문자형 경고수단(35)도 일반적인 신호등이 지니고 있는 신호전달 기능과 일정한 색깔의 발광수단의 구비라는 구성을 갖는 것이어서, 이 사건 제1항 고안의 '신호등용 철주의 가로대 단부에 형성된 거치대에 부착되는 신호등과 조명등'은 확인대상고안의 '횡봉에 장착되는 하방의 횡단보도를 조명하는 다수의 조명등(10)' 및 '횡봉에 장착되는 발광체를 이용한 문자형 경고수단(35)'에 대응된다 할 것이다.

On the other hand, the defendant's ordinary signals are delivered to vehicles or pedestrians only with the signals on traffic flow, while the letter warning means on the subject matter of confirmation are sent to drivers or pedestrians separate from the signals through numerous letters. Thus, the letter warning means on the subject matter of confirmation do not constitute a constituent element corresponding to the signals. Thus, the letter warning means (35) are different from the signals implemented by the current Enforcement Rule of the Road Traffic Act. However, the form, shape, etc. of signals under the Enforcement Rule of the Road Traffic Act are different from those of the signals in force in the current Enforcement Rule of the Road Traffic Act. However, the letter warning means using the light body are equipped with a device that serves as a function of delivering caution signals in relation to the passage of traffic and serves as a device that delivers drivers with caution signals. Thus, the above defendant's assertion is without merit.

(B) Next, we examine whether the plan for confirmation is specified to the extent that it can be compared with the "a composition that enables the signal lights, lighting lights, etc. to be operated in conjunction with the instant Claim 1 device" and its function.

According to Gap evidence Nos. 4, the statement of "A" is written as to the composition of "a type warning device (35)" and whether "a type warning device (10) is operated in conjunction with "a type warning device (10)" (e.g., whether a type warning device is continuously emitting out, regardless of the type of light or pedestrian's existence or not, and if it is flickering at a certain interval of time, whether it is on-and-off along with lighting). It is true that the drawing does not include any matters that can be grasped with such contents. According to the above facts, the second light subject to confirmation is not clear about the composition of "a type warning device (10)" and "operation of a type warning device (35) using the type warning device (10) and the type warning device (10). However, the statement in the second light subject to confirmation is installed with "a type warning device (10) and 15 (10) type warning device (10) type warning device) type warning device (15 (20) type warning element).

In addition, the claim 4 device of this case is limited to "an integrated control with signal lights by signal signal control apparatus (10) with respect to the device of paragraph 1 or 2 of this case, and the explanation and drawing of the challenged area is "a control unit (20) controlling signal lights and warning light generating devices" as a component controlling signal lights (10). However, although the manual and drawing of the challenged area are "a control unit (20) controlling signal lights and warning light generating devices" with respect to the above control unit (20), it is unclear whether the signal lights, etc. are controled by signal control apparatus (a device controlling warning devices within the challenged area).

B. Sub-committee

Therefore, it is not clear that some elements of the instant petition are to be specified compared with the instant petition for registration, and thus, the Korean Intellectual Property Trial and Appeal Board should have dismissed the petition where it makes a decision on the merits or fails to comply with the amendment after correcting the defects within the scope that does not change the substance in the procedure to confirm the scope of scope of scope of scope of scope of scope of scope of scope of scope of scope of scope of scope of scope of scope of scope of claims.

4. Conclusion

Therefore, the decision of this case shall be revoked and it is so decided as per Disposition.

Judges Park Dong-dong (Presiding Judge)