The meaning of Article 6(2) of the Patent Act

The purpose of Article 6(2) of the Patent Act is that if an inventor who had ordinary knowledge in the field of technology to which the invention pertains files an application for a patent, has filed an application for a patent with an invention easily able to make an invention by means of an invention publicly known or worked publicly in the Republic of Korea or a publication published in the Republic of Korea or in foreign countries

Article 6(1) and (2) of the Patent Act

Patent Attorney Kim Jong-jin, Counsel for the defendant-appellant

The Commissioner of the Korean Intellectual Property Office

On February 13, 1980, the Korean Intellectual Property Trial Office rendered a ruling on February 13, 1979 No. 296

The original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office.

The grounds of appeal by the claimant's agent, patent attorney and Kim Jin are examined.

According to the reasoning of the original trial decision, the court below held that the invention of this case filed on May 9, 1978 is identical to the invention described in Article 344 of the Patent Gazette, which was filed on December 19, 1977 and announced on October 26, 1978, and its manufacturing method, purpose and effects are identical. The court below held that it is an application which did not meet the patent requirements under Article 6 (2) of the Patent Act.

However, the purport of Article 6 (2) of the Patent Act is to interpret that, prior to his patent application, an inventor is not entitled to a patent if the inventor has filed an application for a patent that is easily able to make an invention by an invention publicly known or worked domestically or publicly in a publication distributed domestically or abroad. The invention under Article 344 of the Patent Gazette is publicly notified on October 26, 1978 after the filing of the patent application, so long as the invention under Article 6 (1) of the Patent Act is publicly notified on October 26, 1978, the invention under Article 344 of the Patent Gazette does not constitute an invention under each subparagraph of Article 6 (1) of the Patent Act as to the patent application under Article 6 (1) of the Patent Act. Accordingly, the court below held that the invention under Article 344 of the Patent Act is an invention under each subparagraph of Article 6 (2) of the Patent Act with respect to the patent application under Article 6 (1) of the Patent Act and thus, the patent application cannot be granted due to the misapprehension of the legal principles of the above Article 6 (2) of the Patent Act.

Therefore, the case is remanded to the Korean Intellectual Property Office, which is the original trial, to reverse the original trial decision and to re-examine and determine the case. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Tae-tae (Presiding Justice)