(a) Whether a person who received a delivery in the form of sale and purchase of patent products produced by Party A by a joint registrant of a patent right is liable to pay an exclusive license fee to Party B of another joint registrant;

(b) The case holding that, in case where a patent right contract is concluded, the obligation cannot be deemed as a prior payment obligation for claiming a royalty on an exclusive license where the patentee imposes a duty to protect the patent prior to the grant of the patent, such as sanction or a request for prohibition of infringement on the patent;

A. Unless otherwise expressly agreed with other joint registrants, a joint registrant of a patent right is entitled to grant a free license. Thus, unless a person who receives a delivery form of a patent product that was produced by Party A in the form of sale and purchase by another joint registrants, has agreed with Party B on the exclusive license fees, the joint registrants are not obliged to pay the exclusive license fees for the manufacture of the patent product.

(a) Article 99 of the Patent Act; Article 100 of the Patent Act; Article 536 of the Civil Act;

Lee Young-gu

Korea Gas Machinery Co., Ltd.

Seoul High Court Decision 91Na3920 delivered on October 31, 1991

1. Of the part of the judgment below against the defendant, the portion exceeding 12,90,879 won and the amount exceeding 5 percent per annum from March 5, 191 to July 23, 1992 and the amount exceeding 25 percent per annum from the next day to the date of full payment shall be revoked, and the plaintiff's claim against this shall be dismissed.

2. The plaintiff's appeal and the defendant's remaining appeal are all dismissed.

3. All the costs of lawsuit shall be divided into three parts of the first and second instances, and one of them shall be borne by the plaintiff and the other by the defendant respectively.

The defendant shall pay to the plaintiff 18,339,50 won with 25 percent interest per annum from the day following the service of a copy of the complaint of this case to the day of full payment.

Plaintiff: The part of the lower judgment against the Plaintiff shall be revoked.

The defendant shall pay to the plaintiff 3,682,00 won with 25% interest per annum from the day following the service of a copy of the complaint of this case to the day of full payment.

Defendant: The part of the lower judgment against the Defendant is revoked and the Plaintiff’s claim on this part is dismissed.

1. A. A. On May 20, 198, the Plaintiff and the transfer order (hereinafter referred to as “Plaintiff, etc.”) (hereinafter referred to as “non-party company”) of each half of the shares of patent rights, utility model rights, and design rights (hereinafter referred to as “patent rights, etc.”) as listed in the separate sheet No. 1, are jointly registered with the Plaintiff, the holder of the joint registration right, and the transfer order (hereinafter referred to as “Plaintiff, etc.”) established an exclusive license for the patent right, etc. of this case for the non-party company on the five-year exclusive license for the patent right, etc. of this case for the non-party company, and the non-party company did not agree to the transfer of this case without any dispute between the Plaintiff and the above transfer order based on the gas valve closing and closing machine supplied to the Korea Gas Safety Corporation (hereinafter referred to as “25A”) on the basis of the exclusive license for the production of gas closing and closing machines.

B. Without dispute over the establishment of Gap evidence 1, Gap evidence 3, Gap evidence 4, Eul evidence 5-1 through 4, Gap evidence 6-1 to the court below's and the court below's decision-making and the court below's Kim-type, transfer order of witnesses, and the whole purport of the pleadings, the non-party company's establishment registration of the above exclusive license was completed on May 21, 198 pursuant to the above contract with the plaintiff et al., but the non-party company operated the business of the Korea Gas Research Institute, which produced the gas valve, and sold the gas leakage blocking system after receiving it from the above transfer order with the plaintiff's representative of the non-party company's 1989. On January 1, 198, the non-party company established the defendant company by taking over the business of the Korea Gas Research Institute, which was the above transfer order from the non-party company's non-party company's 1 to the defendant company's non-party 19.

C. According to the above facts of recognition, the defendant is obligated to pay to the plaintiff 14,657,50 won [14,975 x 1,400 +835 x 10,000) /2 of the fee for exclusive use of the above exclusive license during the period from January 1, 1990 to October 31 of the same year.

2. On May 20, 198, the Plaintiff and the non-party company agreed to produce and supply the non-party company with the non-party company the above transfer order until the non-party company was equipped with the gas opening and closing valve production facilities even after the non-party company had registered the exclusive license. However, the non-party company was not obligated to pay the non-party company the charges for using the above transfer order to the non-party company for the non-party company on the non-party 3,260, and the non-party company was not obligated to pay the non-party company the charges for using the above transfer order to the non-party company based on the non-party company's non-party 1's non-party company's non-party-party-1's non-party company's non-party-party evidence transfer order based on the non-party-party company's non-party-2's non-party company's non-party-party company's non-party company's non-party-party company's non-party-2's non-party-party testimony and non-party 2's non-party-party-party company's non-party company's non-party company's non-party.

3. At the time of concluding the above exclusive license contract with the plaintiff et al., the defendant agreed to take appropriate measures such as imposing sanctions against the non-party 1 corporation and the Korea Belgium Co., Ltd. upon the infringement of the above patent right, but the defendant did not take any measures against the infringement of the above company's right, and thus, the above obligation of the plaintiff et al. suffered enormous losses after the commencement of business and the plaintiff et al. cannot accept the plaintiff's claim for patent fees unless they do so. Thus, the above portion of public document No. 1 and No. 8-2 are not disputed and the authenticity is established by the testimony of the court below, and the above portion of private document No. 8-1 and No. 2 should be stated in the order of transfer of witness and the testimony of the court below that the non-party 1 corporation should bear all the expenses for the plaintiff et al.'s non-party 1's non-party 1's non-party s/ non-party 1's non-party s/ non-party 3's testimony.

4. Next, since the defendant paid 7,495,021 won to the plaintiff several times after 1989 with the exclusive license of this case, 1,66,621 won remaining after deducting 5,828,40 won appropriated for the 1989 usage fees, 1,66,621 won was appropriated for the portion of 190 usage fees of this case, 11-1 through 4 of evidence No. 11, No. 9 of this case, Eul without dispute over the establishment and receipt of the 1990 use fees of this case, 9, Eul's evidence No. 9, No. 1067 use fees of this case, 1989, 209, 197 use fees of this case, 1,64,80 won, 297 use fees of this case were not appropriated for the defendant's remaining portion of 50 years use fees of this case, 209, 297 use fees of this case.

5. Accordingly, the defendant is liable to pay the plaintiff the royalty of 12,990,879 won (=14,657,50-1,66,621) from January 1, 199 to October 31 of the same year as well as damages for delay with the rate of 5% per annum under the Civil Act from March 5, 191 to July 23, 192 (the plaintiff shall be liable to pay damages for delay with the rate of 25% per annum under the Special Act on the Promotion, etc. of Legal Proceedings from the next day of delivery of a copy of the complaint to the next day of the judgment of the court of the court of the first instance, since it is reasonable to resist the scope of the defendant's obligation to pay damages for delay with the rate of 25% per annum under the above special Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, and the plaintiff's remaining damages for delay from the next day to the next day of the judgment of the court below shall be dismissed as it is without merit.

Judges Ansan-dae (Presiding Judge) (Presiding Judge)