[1] Criteria for determining the necessity of provisional disposition to determine temporary position, and whether there is a need for preservation in special circumstances such as where it is highly probable that the patent will be invalidated at the time of applying for provisional disposition seeking prohibition of patent infringement (negative)

[2] The case holding that the court below's decision to dismiss the application for provisional disposition without waiting the result, etc. of the lawsuit to revoke the patent invalidation is justifiable, since the procedure to suspend the patent infringement prohibition is at the court's discretion even if the lawsuit to revoke the patent invalidation is pending

[1] Article 300(2) of the Civil Execution Act, Article 126 of the Patent Act / [2] Article 300(2) of the Civil Execution Act, Articles 126 and 186 of the Patent Act

[1] Supreme Court Decision 92Da40563 delivered on February 12, 1993 (Gong1993Sang, 971) Supreme Court Decision 2003Da30265 delivered on November 28, 2003 (Gong2004Sang, 42)

Multilateral Co., Ltd.

Busan Bank, Inc.

Busan High Court Order 2005Ra157 dated August 1, 2006

The reappeal is dismissed.

The grounds of reappeal are examined.

1. Whether a provisional disposition to determine a temporary position under Article 300 (2) of the Civil Execution Act is necessary shall be decided on the basis of the court's discretion in consideration of the interests and loss relation between the parties following the acceptance of the application for provisional disposition in question, the anticipated failure in the lawsuit on the merits, and other circumstances. Furthermore, in the case of a satisfactory provisional disposition which imposes an omission obligation on the obligor of provisional disposition, such as ordering the obligor of patent infringement in the judgment on the merits, the necessity for preservation thereof should be determined more carefully in determining the necessity for preservation. Thus, in the case of a satisfactory provisional disposition which imposes an omission obligation on the obligor of provisional disposition, the patent right should be invalidated at the time of the application for provisional disposition, or in the procedure for invalidation of registration filed separately with the Korean Intellectual Property Office at the time of the application for provisional disposition, there is a trial decision to purport that the patent right is invalid, or if there is any special circumstance such that the patent is highly likely to be invalidated in the future from the grounds for the request for invalidation trial and evidence relation, the application for provisional disposition shall be dismissed on the basis of equity among the parties.

According to the facts duly admitted by the court below and the court of first instance as cited by the court below, since the claims 1, 3, and 2 of this case are highly likely to be invalidated by the registration invalidation procedure, the application for provisional disposition in this case is not sufficient to explain the necessity of preservation, and therefore, the court below maintained the decision of the court of first instance which dismissed the application for provisional disposition in this case, and there is no error of law as otherwise alleged in the grounds for reappeal. Although the lawsuit seeking revocation of the decision that the claims 1, 3, and 2 of this case are invalid is pending, the decision of suspending the procedure in this case is a matter belonging to the court below's discretion, and it cannot be said that the court below erred in determining that the court below did not wait for the result, etc. of the lawsuit seeking revocation of the decision in this case and it cannot be said that the case should be presumed until the decision in this case becomes final and conclusive.

2. In addition, the argument that the applicant who filed an appeal against the decision of the first instance is not entitled to a legitimate ground for reappeal against the order of the court below without any assertion as to the decision of the court below. Since it is clear that the respondent's ground for reappeal that "the applicant's ground for reappeal against the right to claim a patent of the second patent of this case" infringed upon the applicant's right to claim a patent of the second patent of this case, it cannot be a legitimate ground for reappeal against the order of the court below. Further, the claim 5 of the second patent of this case is merely a procedural composition from the systematic composition of the claim 1 to 3 of the second patent of this case and it is highly probable that the registration will be invalidated by the invalidation trial procedure of the second patent of this case as well as the claim 1 to 3 of the second patent of this case. Thus, it is difficult to accept the claimant's assertion based on the claims of this part.

3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)