[1] Whether an affirmative action to confirm the scope of rights of the earlier application is allowed, which is a subject matter of confirmation that the later application is registered as the subject matter of confirmation (negative)

[2] Requirements for establishing a relationship of use between a prior registration complaint and a subsequent registration complaint

[3] Cases where the scope of rights of a utility model right can be limited and interpreted

[4] The case holding that the above request for a trial is unlawful on the ground that in a claim for active confirmation of the scope of right, which seeks confirmation that the proposal subject to confirmation falls under the scope of right of the proposal registered in the earlier application based on the later application as the subject matter of confirmation, it cannot be deemed that the registered device in the earlier application is in

[1] The affirmative confirmation of the scope of a right that seeks the confirmation of the scope of a right that belongs to the scope of a registered petition based on an earlier application with the device registered by the later application as the subject matter of confirmation, shall not be permitted as the result of denying the validity of the right, unless the two devices do not deny the registration of the subject matter of confirmation in the utilization relationship under Article 39 of the former Utility Model Act (amended by Act No. 7289 of Dec. 31, 2004), and the confirmation of the scope of the right may be sought without denying the validity of the registration of the subject matter of confirmation, and the affirmative confirmation of the scope of a right between the rights-holder shall be dismissed as an unlawful claim without any benefit of confirmation.

[2] The use relationship between the prior registration device and the subsequent registration device is the case where the subsequent registration device adds new technical elements to the technical composition of the prior registration device, and the subsequent registration device contains the outline of the prior registration device, and is used as it is, while the prior registration device maintains the unity of the device in the subsequent registration device.

[3] When interpreting the claims as it is clearly unreasonable in light of the different descriptions of the description, such as the case where a part of the literal interpretation that is included in the claims is not supported by the detailed description of the device, it may be limited and interpreted by taking into account the different descriptions in the description of the applied professional engineer and the legal stability of the third party.

[4] The case holding that the above request for a trial is unlawful on the ground that in a claim for active confirmation of the scope of right, which seeks confirmation that the proposal subject to confirmation falls under the scope of right of the proposal registered in the earlier application based on the later application as the subject matter of confirmation, it cannot be deemed that the registered device in the earlier application was in the relationship

[1] Article 39 of the former Utility Model Act (amended by Act No. 7289 of Dec. 31, 2004) (see current Article 25) / [2] Article 39 of the former Utility Model Act (amended by Act No. 7289 of Dec. 31, 2004) (see current Article 25) / [3] Article 50 of the former Utility Model Act (amended by Act No. 7289 of Dec. 31, 2004) / [4] Article 39 of the former Utility Model Act (amended by Act No. 7289 of Dec. 31, 2004) (see current Article 25)

[1] Supreme Court Decision 9Hu2433 delivered on June 28, 2002 (Gong2002Ha, 1855) / [2] Supreme Court Decision 2001Hu393 Delivered on September 7, 2001 (Gong2001Ha, 2197) / [3] Supreme Court Decision 2001Hu2856 Delivered on July 11, 2003 (Gong2003Ha, 1731)

Mail Law Firm (Patent Attorney Park Gyeong-chul, Counsel for the plaintiff-appellant)

Sejong Industrial Co., Ltd. (Patent Attorney Ma Sung-jin, Counsel for the defendant-appellant)

June 2, 2006

1. The decision made by the Intellectual Property Tribunal on November 30, 2005 on the case No. 1490 shall be revoked;

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the trial decision;

A. The defendant filed an application on December 7, 200, and registered on March 2, 2001, is the owner of the utility model right under the attached Form 1 “Automatic Capital” (hereinafter “instant registered design”). The defendant filed a motion to confirm the scope of the right within the scope of the right under paragraphs (1) through (3) (hereinafter “instant Claim for Registration”). The defendant filed a motion to confirm the scope of the right under the attached Form 2, which belongs to the scope of the right under paragraphs (1) through (3) (hereinafter “instant Claim for Registration”).

B. The registered device of this case is characterized by the characteristic that: (a) linking a stude with a stude with a stude with a superior stude with a stude with a superior stude with an automatic stude; (b) connecting a stude with a stude with a superior stude with an automatic stude with a stude with an automatic stude with a stude; (c) facilitating the installation of a stude with a stude with a stude with a stude with a stude with a stude with a practical simplification with a stude with a stude; and (d) linking the device of this case with the device of this case 3rdude with the device of this case for the same reason as the device of this case 2ndude with the device of this case; and (e) connecting the device of this case 1stude with the device of this case 3rd part of this case.

[Grounds for Recognition: No dispute exists]

2. Determination as to the legitimacy of the trial decision

A. Whether the active claim to confirm the scope of the right of this case is legitimate

The active confirmation of the scope of a right that seeks confirmation of a device registered by an earlier application with the device as the subject matter of confirmation falls under the scope of a right in the earlier application, shall not be permitted as the result of denying the validity of the right, unless the effect of the registration of the subject matter of confirmation is denied in the relation of use provided for in Article 39 of the former Utility Model Act (amended by Act No. 7289 of Dec. 31, 2004), and as a result, the affirmative confirmation of the scope of a right that seeks confirmation of a right that falls under the scope of a right in the earlier application with the device registered by the later application as the subject matter of confirmation (see Supreme Court Decision 9Hu2433, Jun. 28, 2002). The affirmative confirmation of the scope of a right between the rights-holder rights shall be dismissed as

The plaintiff filed an application on November 10, 2003 and filed a utility model registration on January 13, 2004, and the plaintiff is the right holder of the subsequent application under the attached Form 3, and the claim Nos. 1, 3, and 5 of the prior application and the subsequent application claim No. 1, 3, and 5 of the prior application claim No. 1 are identical to the parties. Thus, the prior application for confirmation is already registered at the time of the decision of this case. As a result, the defendant's appeal constitutes an active trial to confirm that the subsequent application falls under the scope of the right of the prior application.

Therefore, the Plaintiff’s claim to confirm the scope of right of this case is unlawful insofar as the petition does not correspond to the registered complaint and the use relationship.

B. Whether the proposal for confirmation is in a relationship of use with the device of Paragraph 1 of this case

(1) Criteria for determination

The use relationship is established when the later registered device adds new technical elements to the technical composition of the earlier registered device. The later registered device contains a summary of the earlier registered device, and uses it as it is, but the later registered device maintains the unity of the device as a device within the later registered device (see Supreme Court Decision 2001Hu393, Sept. 7, 2001). Therefore, in order to establish the use relationship, the confirmation device contains all the technical composition of the instant registered device, and uses it as it is, while the instant registered device should maintain the unity of the device.

(2) Interpretation of the Claim No. 1 of the instant Claim No. 1 in relation to the Amateur (18)

Inasmuch as the Plaintiff cannot incorporate the device of Paragraph 1 into the inner part of the connecting absence (14) (14), the Defendant asserted that the Plaintiff did not establish a relation of use with the shotning (118) inserted in the outer part of the connecting absence (114b) (114b) (i.e., the device of Paragraph 1 of this case) (hereinafter referred to as the “instant Claim 1”) was not limited to the location of the inserting in the claim. Therefore, the instant Claim 1’s device subject to confirmation is arguing that the device of this case was used as it includes the shotning (18) composition of the instant Claim 1 device.

B. Before examining whether carbon monitoring (118) in the device subject to confirmation (118) has been used as it is including the composition of carbon monitoring (18), the scope of the right to the composition of carbon monitoring (18) out of the claim of the instant Claim No. 1 design is examined.

In a case where a part of a literal interpretation that is included in the claims is not supported by the detailed description of the device, and it is clearly unreasonable to interpret the claims as it is in light of the different description of the specification, the scope of the right may be limited and interpreted by taking into account the different description of the application and the legal stability of the third party (see Supreme Court Decision 2001Hu2856, Jul. 11, 2003).

(2) It is interpreted that there is no limit to the location of the 16 covered covered by the instant Claim No. 1. It is also interpreted that the interconnection No. 16 is included in the outer and inner content of the non-connection (14). However, even if the non-connection 14 is installed, it is further connected with the non-connection 18 (14) that the non-connection 14) connected with the non-connection 6 (14) connected with the non-connection 16 (14) connected with the non-connection 6 (14) connected with the non-connection 14).

Therefore, it is clearly unreasonable to interpret that the claims are included in the scope of rights even when the claims are inserted in the inside of the connecting absence (14), as seen above, as seen in the instant Claim No. 1 design, in light of other descriptions of the specification, it should be interpreted only that the claims are inserted outside of the connecting absence (14).

(3) Determination as to whether the use relation constitutes a use relation

In addition, as long as the carbon shot (18) of the Claim 1 device of this case is limited to the addition of the outer space (14) of the connecting absence (114) (14) to the outer space (114b), the composition of the device of this case is different from the shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot 118).

Therefore, without examining the remainder of the composition, the subject matter of confirmation cannot be seen as having the relationship between the design of Paragraph 1 of this case and the relationship of use and the relation of equal use.

C. Whether the petition for confirmation is in a relationship of use with the second and third devices of this case

The second and third devices of this case are subordinate claims of the instant Claim Nos. 1, which include all the composition of the instant Claim Nos. 1, and include a specific limitation or specification of the composition. As seen above, carbon heading (18) among each claim is construed only as inserting the outside of the connection absence (14). Thus, it cannot be deemed that the instant Claim Nos. 2 and 3 devices are in the relation of use and the relation of equal use.

D. Sub-committee

Therefore, the instant petition for a trial should be dismissed as a positive claim for the confirmation of the scope of rights between the rights-holder and thus, it is unlawful to conclude that the instant petition for a trial is unlawful.

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.

[Attachment] omitted

Judges Lee Sung-ho (Presiding Judge)