[1] Purport of Article 163 of the Patent Act which is applicable mutatis mutandis by Article 56 of the Utility Model Act

[2] The case holding that a petition for invalidation of registration against the "Magurigurill" of the registered complaint does not violate the doctrine of res judicata, and the above registered complaint can be easily designed from the combination of the comparable complaint, so it constitutes Article 4 (2) of the former Utility Model Act and thus null and void under Article 4 (2) of the former Utility Model Act

[1] The purpose of Article 163 of the Patent Act, which is applied mutatis mutandis under Article 56 of the Utility Model Act, is to prevent inconsistency between trial decisions and prevent lawsuits by preventing economic feasibility in trial proceedings, thereby preventing the other party from responding to the same trial proceedings, and the Korean Intellectual Property Tribunal may be relieved from unreasonable grounds to repeatedly re-examine the same trial. Thus, the effect of res judicata is recognized only where it is based on "same facts and evidence."

[2] The case holding that since a petition for a trial for invalidation of registration against the "Magurigurigll" of the registered complaint is different from the final and conclusive trial decision prior to the trial decision, and there are new evidences that are likely to affect the trial decision, it cannot be viewed as a claim based on the same facts and the same evidence, it does not violate the legal principles of res judicata, and the above registered complaint can be easily designed from the combination of the comparative designs, it constitutes Article 4 (2) of the former Utility Model Act (amended by Act No. 5577 of Sep. 23, 1998) and thus, it is invalid.

[1] Article 163 of the Patent Act, Article 56 of the Utility Model Act / [2] Article 4 (2) of the former Utility Model Act (amended by Act No. 5577 of September 23, 1998) (see Article 5 (2) of the current Act)

Magsung District Co., Ltd. (Patent Attorney Park Jong-chul, Counsel for defendant-appellant)

Dong Mine Construction Co., Ltd. (Patent Attorney Lee Im-soo)

January 13, 2005

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on June 25, 2004 on the case No. 2002Dang2748 shall be revoked.

1. Details of the instant trial decision

A. On October 16, 2002, the Defendant claimed a trial to invalidate the instant registered complaint against the Plaintiff on the ground that the Plaintiff’s instant petition for trial against the Plaintiff on the instant petition for trial on the lack of newness or non-obviousness, is identical to the device publicly known or publicly implemented in Korea or a publication published in Korea or in a publication published inside and outside Korea, and thus, it can easily be created by a person having ordinary skill in the relevant technical field from the combination thereof.

B. After the Intellectual Property Trial and Appeal Board reviewed the case as the case No. 2002Da2748, Jun. 25, 2004. The registered complaint of this case is identical to the device publicly known and used in Korea (an object of non-obviousness) prior to the filing of the application, and its purpose and effect are identical. There are some differences in the composition. However, such differences in the composition are merely a modification of design, and it is extremely easy for a person with ordinary knowledge in the art to easily plan from the publicly known and public devices. Thus, the registered complaint of this case cited the plaintiff's request for a trial to the purport that there is no non-obviousness.

C. Details of the instant registered complaint and comparative complaint

(1) Details of the instant registered complaint (Evidence A No. 3)

The name of the proposed registration complaint of this case (application on May 9, 1995, registration on July 29, 1998, and registration number No. 127910) which the plaintiff is a utility model right holder is "Maliglgglglgggggggggggggggggggggggggggggggg

(2) Details of the comparative proposal

Attached Form 2 shall be as listed in attached Table 2.

[Evidence] Documents Nos. 1, 2, 3, Eul Nos. 1 through 4, 7, 8, 9, and the purport of the whole pleadings

2. The parties' assertion

A. Summary of the grounds for revocation of the Plaintiff’s trial decision

(1) Nos. 1 to 4 supporting that the comparative design 1 to 4 had been publicly known or publicly announced in the Republic of Korea prior to the filing of the application for the registration of the instant design is forged or not reliable, and the instant trial decision did not constitute a violation of the rules of evidence since it was recognized as evidence.

(2) As seen in the final and conclusive trial decision (registration invalidation of the Patent Tribunal's Macholl, No. 127910 of the Utility Model Registration No. 2000Da334 of the Patent Tribunal), the instant petition for registration differs from the comparative petition No. 5, and its technical composition and the subsequent effects.

(3) Therefore, the instant registered complaint should be revoked as it is unlawful to dismiss the Plaintiff’s appeal on the ground that the nonobviousness is not recognized despite the recognition of newness and inventive step.

B. Defendant’s assertion

(1) The instant registered complaint is merely the same as, or simple modification of, the comparable design 4 (No. 4 (No. 4) known or publicly implemented in the Republic of Korea prior to the filing of the application, and therefore, the instant trial decision is legitimate and is therefore not erroneous in the rules of evidence.

(2) The registered device of this case is highly easily designed from combinations 5, 6, and 7 of comparable high design 5 and components and action effects are the same as the comparative design 5, 6, and 7. Thus, newness and non-obviousness is not recognized.

The registered complaint of this case is identical with the comparative complaint 5, and its corresponding components are the same, and somewhat differences can be easily designed by design modification or by combination of widely known and used technologies.

With regard to the method of combining two flusiums within the registered device of this case, as to the technology in which flus are inserted into the combined hole in the combined hole, the scope of claims in the registered device of this case does not specifically limit the combination hole (4) to the combined hole (3) combined with the other flus body of the main body of flus in any way, so there is no difference in the composition formed by the combined hole for inserting Fin(90,96) into the two parts of the comparable device 1, the combined device for inserting Fin(88), and there is no difference in the composition formed by the combined hole for inserting Fin(90,96) into both parts of the combined device 6 and 7, since the conclusion of the shape of flus or the conclusion of the contract of flus is commenced in the combined hole 6 and 7, it can be easily designed from these combinations.

3. Determination

A. Whether the comparative design 1 to 4 was publicly announced prior to the filing of the instant registered complaint

(1) Regarding the fact that Gap's testimony Nos. 4, 5, Gap's evidence Nos. 6-1 through 3, Gap evidence Nos. 8-19, Eul evidence Nos. 12, 13 (U.S. 13) appeared in the court for the cancellation of the trial decision on the design registration of this case (the Patent Act No. 20036029) and his testimony No. 9 were not presented to the court for the first time. The three companies did not answer to the plaintiff's testimony that the above testimony No. 9 was not presented to the court for the cancellation of the trial on the design registration of this case. The three companies did not answer to the plaintiff's testimony that the plaintiff's testimony No. 9 was not presented to the court for the cancellation of the trial on the design registration of this case, and that the plaintiff's testimony and the defendant's testimony No. 2 were not presented to the court for the cancellation of the trial on the design of this case.

(2) According to the above facts, the evidence that corresponds to the Defendant’s assertion that the president 1 through 4 of the comparative bid had been designed and announced prior to the filing of the application for the instant registered complaint, or supplied to the construction site cannot be trusted, and there is no other evidence to acknowledge it. Thus, the Defendant’s assertion that the instant registered complaint should be invalidated prior to the filing of the application by the head of the comparative bid publicly notified and publicly notified prior to the filing of the application is unacceptable.

B. Whether the registered device of this case is non-obviousness compared to the comparable device 5 to 7

(1) Preparation for purposes

The purpose of the registered complaint of this case is to ensure close combination with the vertical absence of the board for general food collection at the time of assembly of the board for food collection. The purpose of the registered complaint of this case is to provide the board for food collection, which is not modified by the measuring pressure of tar generated when concrete is removed. The 5th of the comparative complaint of this case is a single mar (78) that can easily close the aspect of food collection by combining it with the reinforcement unit (30) on the external food (38) at the head of the mar house (30) which can adjust the interval between the inside and outside of the Republic of Korea, and the height of the installation of the mar house. However, the detailed explanation of the 5th of the comparative complaint of this case does not stipulate that it is not modified by the side pressure of tar (78) without being modified by the comparison plan of this case from the point of view that it is reasonable to view that it is not modified by the comparison plan of this case from the following perspective.

(2) Preparation for composition

(A) The composition of the front panel (2) is compared to the composition of the combination of pets (82) combined on the one side of the majority vertical series (84,86) assigned at a specific interval between the two parts of the instant registered appeal (1). The two parts are the same in terms of the composition of the parts attached to the front panel (2) or pets (82), and the number of parts attached to the plate to reinforce the vertical direction in order to reinforce it. However, since the parts are combined with the front panel (1) and the front panel (2) and the number of parts attached to the plate at a specific intervals and are all combined with the number of parts attached to the panel (84,86) and the number of parts attached to the plate (84,86). The two parts are all identical to the composition of the combined steel, and they are not combined with the number of parts attached to the board (2) and the number of parts attached to the plate (2).

However, according to the health stand, Gap evidence Nos. 3 and Eul evidence Nos. 7 with respect to the materials of sign board or vertical report, the detailed description of the registered device of this case is indicated in the previous technology that the long-term (35) is composed of steel plates without knowledge of the board board, which is contained in the device presented as a previous technology, and the detailed description of the 5th of the comparable device is indicated that vertical (36) can be composed of wood or steel materials, and the vertical table (84) of a single type of steel collection (36) for the formation of concrete walls and a single unit of concrete walls (78) for the formation of a single unit of concrete walls is written in the same term, and it is extremely acceptable to recognize that the device of this case is composed of a single type of steel plates or concrete plates. According to the fact that the number of pages related to the concrete unit (82) is composed of concrete plates or concrete plates prior to the number of times of application for a sign board.

In addition, in a case where a single sing (82) and a vertical watch (84,86) are replaced with metal materials, it is difficult for a person with ordinary knowledge in the field of technology to easily recognize the combination between the hand singing (84,86) and the hand sing (82) and the hand sing (84,86) and the hand sing (82) and the water singing (83) are used, and it is widely known and used technology to approach the combination between metal materials (2) and the metal singing (1). Thus, in the instant registration application of this case, the singing combination between the materials of the front board (2) and the hand sing (1) can be easily derived from the substitution of the metal materials from the comparison design 5 to the water sing (84,86) and the singing (82).

(B) The component 2 of the instant registered appeal is "a component combined with several directions of width (4) in which a combined hole is formed in both teams in the horizontal direction of width (1)." On the other side of the 5th vertical watch (84,86) of the comparative appeal, the number of horizontal lines (90) where a combined hole for inserting hin (94,86) and hin (96) for inserting hin (96) are formed in both teams (84,86) are responding to the horizontal direction of the vertical watch (88). The two parts are identical in that a number of horizontal lines (84,86) where a combined hole for inserting hin (90) and hin (96) are installed in both teams are attached at a specified intervals, but the two parts are different from that of the combined invention (84,86).

However, according to the statements in Eul evidence 7, the detailed explanation in Eul evidence 5 of the comparative highest base stated that horizontal (38) consists of steel materials of heavy factory as desirable, and that horizontal (38) and horizontal (88) of single straw (78) are identical terms. According to the above facts, the comparative highest base 5 contains horizontal (88) corresponding to the horizontal absence of 2 of the constituent elements of this case, which consists of metal materials, and as seen above, it is merely widely known or easy to constitute metal materials such as metal plates, and in such a case, it is nothing more than 84,86 of the comparative highest base 5 of the comparative highest base 5, and it is nothing more than 84,86, a combination of horizontal (84,86) and horizontal (8,88,88,88,88,88,88,88,88,8,86, and it shall be a combination of materials composed of identical terms.

On the other hand, the claims within the registered height of this case are only composed of 3 holess (4) combined with the two parts of the registered height of this case, so it is sufficient to compare whether the progress or non-obviousness of the registered height of this case is identical to that of the conclusion hole and its action effect in comparison with the two parts of the registered height of this case 5 horizontal height (88). However, in the previous trial decision (2000No. 334), the combined hole (3) formed at the two parts of the registered height of this case 4) and the combined hole (4) established at the two parts of the registered height of this case can be easily combined with those of the registered height of 6th term "an open space (22) combined with the registered height of "an open space (4) combined with the registered height of 6th term "an open space (26th) combined with the registered height of 7th term "an open space (26th term) combined with the registered height of this case."

(iii)Preparation for operational effects;

The registered bill of this case is closely combined with steel materials in itself and the general food office (22). Since there is no distribution phenomenon generated by concrete side pressure, and there is a reusable effect because damage was not generated in the process of dismantling a food office in the process of dismantling it, and even in the comparison bill 5, the vertical assistant (84,86) functions to increase the strength of the vertical direction of the large food office, and the horizontal assistant (88) functions to increase the horizontal direction of the large food office, and the horizontal assistant (28,30) functions to cut off the large food office with the vertical direction of the horizontal direction of the large food office, and the absence is easy to change the design with metal materials. Thus, there is no particular difference between the registration bill of this case and the comparison bill of this case, and the comparison plan of this case, the vertical assistant (84,86) functions to reduce the vertical direction of the large food office.

As to this issue, the plaintiff's registered appeal of this case (200.334) stated that the purpose, composition, and effects of comparative appeal of this case were different from those of the previous trial decision of this case, and the above trial decision of this case became final and conclusive, Article 163 of the Patent Act applied mutatis mutandis by Article 56 of the Utility Model Act provides that "if a trial decision of this Act becomes final and conclusive, any person may not request a trial again with the same facts and evidence." The purport of the above provision is to prevent conflict between the trial decision of this case from being inconsistent with each other and to promote economic efficiency of the trial procedure by preventing other's appeal of this case, and the Patent Tribunal's decision of this case can easily be seen as identical or non-obviousness from an unreasonable point of view that the plaintiff's registered appeal of this case can be seen as identical or non-obviousness of the same subject matter of lawsuit of this case's prior to this case's trial decision of this case's prior to this case's final and conclusive judgment of this case's 20.

C. Sub-committee

Therefore, the registered device of this case can be easily designed from the combinations of the comparison device 5 to 7. Thus, it should be invalidated as it falls under Article 4 (2) of the former Utility Model Act (amended by Act No. 5577 of September 23, 1998). The decision of this case is legitimate in its conclusion although it judged that the registered device of this case was not non-obviousness in the combination of the comparison device 1 to 4 publicly announced and performed before the application, it is legitimate in its conclusion.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the revocation of the trial decision of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Park Dong-dong (Presiding Judge)