[1] The description of the patent application specification

[2] The case holding that the invention of a new variety of trees on the premise of protruding trees did not state a protruding method in the invention of a new variety of trees on the premise that protruding trees are not mentioned in the specification

[3] In the case of a plant invention, whether a deposit of the outcome of the patent application can supplement or substitute the description of the patent application (negative)

[1] Article 42(2) of the Patent Act provides that "the patent application shall be accompanied by the name of "1." invention; 2. the brief description of the drawings; 3. the detailed description of the invention; 4. the scope of the patent application; and the description and the necessary drawings." Paragraph 3 provides that "The detailed description of the invention under Paragraph 2(3) shall state the purpose, composition, action, and effect of the invention to the extent that it can be easily carried out by a person with ordinary knowledge in the art to which the invention pertains, and that is, a person with ordinary technological understanding of the invention in the art to which the invention pertains; an average technician, without considering the invention as a technical standard at the time of the application, can understand the invention accurately and at the same time, it is necessary to explain the invention to the extent that it can be reproduced."

[2] The case holding that, in order to implement an application invention for a plant belonging to a new variety, an invention for an application for a patent must necessarily have a fluoral urine having the same characteristics as that in the application invention, and the purpose of the invention can be achieved by breeding by fluoring it by using the snow of the relevant fluoral tree or fluoral, and that the specification of the application invention does not state the process of fluoring the fluoral fluoring the fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluor.

[3] The specification of the patent application invention must state the process so that the average technician in the technical field can reproduce the outcome of the patent application invention, and it cannot supplement or substitute the description by depositing plant or plant materials which are the result of the patent application invention.

[1] Article 42(3) of the Patent Act / [2] Article 42(3) of the Patent Act / [3] Article 42(3) of the Patent Act, Article 2(1) of the Enforcement Decree of the Patent Act

[1] Supreme Court Decision 94Hu654 delivered on July 14, 1995 (Gong1995Ha, 2810), Supreme Court Decision 94Hu1459 delivered on January 26, 1996 (Gong1996Sang, 785), Supreme Court Decision 95Hu95 delivered on June 28, 1996 (Gong196Ha, 2377), Supreme Court Decision 95Hu1326 delivered on July 30, 1996 (Gong196Ha, 2664) / [2] Supreme Court Decision 89Hu1080 delivered on February 27, 1990 (Gong190, 778)

Applicant (Patent Attorney Shin-gil, Counsel for defendant)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Trial Office Decision 95Na1875 dated December 3, 1996

The appeal is dismissed. The costs of appeal are assessed against the applicant.

The grounds of appeal are examined.

Article 42 (2) of the Patent Act provides that "the patent application shall be accompanied by the name of "1.", 2. a brief explanation of the drawings, 3. the detailed description of the invention, 4. the scope of the patent application, and 4." The detailed description of the invention under paragraph (2) 3 shall state the purpose, composition, action, and effect of the invention to the extent that it can be easily carried out by a person with ordinary knowledge in the art to which the invention pertains," and it is necessary to clearly understand the invention without adding special knowledge to the level of technology at the time of application based on the description (see Supreme Court Decision 94Hu1459 delivered on January 26, 1996).

Examining the reasoning of the decision of the court below in light of the records and relevant Acts and subordinate statutes, in order to implement the invention of this case concerning plants belonging to the new variety, there must be trees with the same characteristics as the invention of this case, and the purpose of the invention of this case can be achieved by breeding by using the snow of the relevant tree or bamboo, and the specification of the invention of this case does not indicate the process of changing the number of trees with the same characteristics as that of the new variety, and it is highly unlikely that such a change is likely to occur in the natural environment. Thus, even if the breeding process can be easily implemented in the next process, the entire invention of this case cannot be said to have been stated to the extent that a person with ordinary knowledge in the technical field could easily reproduce the invention of this case, and eventually, the invention of this case can not be seen as having been affected by the misapprehension of the legal principles as to the patent application of Article 42(3) of the Patent Act or the measures of this case, which were alleged in the ground of appeal due to the lack of the description.

The specification of the patent application invention must state the process so that the average technician in the technical field can reproduce the outcome of the patent application invention, and it is not possible to supplement or substitute the description by depositing plant or plant materials which are the result of the patent application invention. The argument in the grounds of appeal is without merit.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)