[1] Whether the owner of a prior registered utility model right can actively file a claim against the registered owner of the utility model right to confirm the scope of the right (negative)

[2] The case holding that in a case where a prior registrant of the registered petition filed a petition for a trial to confirm the scope of a patent right with the purport that the (A) device registered after the applicant is invalid as a non-obviousnessless design, the claim is unlawful for lack of interest in the confirmation

[1] The active confirmation of the scope of a right to a registered device, which is later registered, shall not be permitted in principle, as a result of denying the validity of the right before an invalidation trial on the registered right becomes final and conclusive. However, in exceptional cases where both devices are in a utilization relationship under Article 11(3) of the former Utility Model Act (amended by Act No. 4209 of Jan. 13, 1990), and can seek confirmation of the scope of the right without denying the validity of the registration of the device under Article 11(3) of the former Utility Model Act, the affirmative confirmation of the scope of a right between the rights claimant and the rights shall be allowed.

[2] The case holding that in a case where a prior registrant of the registered petition filed a petition for a trial to confirm the scope of a patent right with the purport that the (A) device registered after the applicant is invalid as a non-obviousness of the design, the claim is unlawful for lack of interest in the confirmation

[1] Articles 11(3) and 25(1)2 (see current Article 39) of the former Utility Model Act (amended by Act No. 4209, Jan. 13, 1990); Article 135 of the former Patent Act (amended by Act No. 4207, Jan. 13, 1990); Article 135 of the former Patent Act / [2] Articles 11(3) and 25(1)2 (see current Article 35 of the Utility Model Act); Article 135 of the former Patent Act (amended by Act No. 4207, Jan. 13, 1990)

[1] Supreme Court Decision 83Hu107 delivered on May 15, 1984 (Gong1984, 1025), Supreme Court Decision 84Hu6 delivered on March 25, 1986 (Gong1986, 705 delivered on July 30, 1996 (Gong196Ha, 2675), Supreme Court Decision 95Hu1920 delivered on December 20, 196 (Gong197, 385)

Plaintiff

Defendant

Patent Court Decision 99Heo1720 delivered on September 2, 1999

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

We examine the grounds of appeal.

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below held that granting the affirmative confirmation of the scope of a right between a device registered by a prior application and a device registered by an application after the subsequent application would not be permitted as a result of denying the validity of a registered right after the invalidation trial, not by the invalidation trial, but by denying the validity of a subsequent registration right. However, in the case of a use relationship even between the right holder and the right holder, the validity of a subsequent registration right is not denied, and it is clear that the object of the affirmative confirmation of the scope of a right is the right holder after the prior registration, and that the object

Therefore, we cannot accept the ground of appeal that the court below erred by misapprehending the legal principles as to the confirmation of the scope of a patent right under the premise that the object of the affirmative confirmation of the scope of a patent right must be the prior registration right after the substitution

2. On the second ground for appeal

Afterward, the affirmative confirmation of the scope of a right that seeks confirmation of a device registered on the basis of the prior application falls under the scope of the right in the registered petition, shall not be permitted in principle as a result of denying the validity of the subsequent registered right before the confirmation of the invalidation trial on the right (see, e.g., Supreme Court Decision 95Hu1920, Dec. 20, 196). However, in exceptional cases where both devices are used under Article 11(3) of the former Utility Model Act (wholly amended by Act No. 4209, Jan. 13, 1990) and seek confirmation of the scope of the right, the affirmative confirmation of the scope of a right between the rights-holder rights shall be allowed.

As the grounds of appeal, the plaintiff asserts that the right to registration exists after a device registered in accordance with the later application was used as a device registered in accordance with the earlier application, and that the plaintiff's assertion that the (a) device registered in the earlier stage of the adjudication in this case is invalid is merely merely a mere assertion, and thus, it cannot be deemed unlawful. However, as long as the plaintiff claims a positive confirmation trial on the scope of a patent right by asserting that the (a) device registered in the later stage is invalid as a malicious design without non-obviousness, the plaintiff's affirmative confirmation of the scope of a patent right shall not be recognized, and thus, it shall result in an illegal claim as it is difficult to recognize the benefits of confirmation. The decision of the court below to the same purport

The grounds of appeal disputing this issue cannot be accepted.

3. Conclusion

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 on the bench.

Justices Yoon Jae-sik (Presiding Justice)