Whether there is a benefit in confirmation if there is a difference between a device subject to adjudication in the active scope of a trial and a device actually implemented by the claimant (negative)

In order to confirm the scope of active right of a registered utility model right, etc., even though the trial decision becomes final and conclusive that the (a) device falls under the scope of the right of the registered design of this case, the res judicata effect of the said device does not affect only the (a) device, and thus, the request for trial on the (a) device, which is not actually implemented by the claimant, shall be dismissed as it is unlawful because the interests of confirmation are nonexistent.

Article 35 of the Utility Model Act, Article 135 of the Patent Act

Supreme Court Decision 81Hu69 delivered on July 27, 1982 (Gong1990, 649 delivered on February 9, 1990) Supreme Court Decision 89Hu1431 delivered on February 9, 1990 (Gong1990, 649) Supreme Court Decision 92Hu438 delivered on October 9, 1992 (Gong192, 3142) Supreme Court Decision 92Hu2182 delivered on March 25, 1994 (Gong194, 1338)

Claimant (Patent Attorney Min-young, Counsel for defendant-appellant)

Appellant (Patent Attorney Park Yong-hwan, Counsel for defendant-appellant)

Korean Intellectual Property Office Order 92 No. 1208 dated November 30, 1994

The appeal is dismissed. All costs of appeal are assessed against the claimant.

The ground of appeal by the claimant is examined.

1. On the first ground for appeal

According to the reasoning of the original decision, in order to prove that the respondent has actually performed the device under subparagraph (a), the court below acknowledged that the respondent has performed the device under subparagraph (b) at an interval between 111(a) and 111(a) as described in the evidence submitted by the claimant, with a certain distance of time after forming the support 111(a) (11a), and attaching a fixed board (112) (112) (1) (13a) at an upper or lower level, and there is no difference in the composition of the fixed board (113a) at an interval of time as described in the detailed description and the detailed description of the (b) device claimed by the respondent that the respondent is actually implementing the device under subparagraph (a). In light of the records, the court below's recognition and decision is justifiable, and there is no error in the misapprehension of the legal principles as to the lawsuit or the decision on the trial, etc. which affected the conclusion of the judgment.

2. On the second ground for appeal

In order to confirm the scope of active right of a utility model right, etc. registered as the subject of the judgment by the claimant, the decision of the court below to the same purport is just, and it cannot be deemed that the res judicata effect extends to the (Ga) device, even though the decision of the trial becomes final and conclusive that the (Ga) device falls under the scope of the right in the registered petition of this case, or that the (Ga) device does not fall under the other (Ga) device. Therefore, the request for a trial on the (Ga) device, which is not actually implemented by the claimant, is unlawful as there is no benefit of confirmation, and thus, it shall be dismissed (see Supreme Court Decisions 81Hu69, Jul. 27, 1982; 92Hu2182, Mar. 25, 1994; 92Hu2182, Mar. 25, 1994).

3. Therefore, the appeal is dismissed and all 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 Chocheon-sung (Presiding Justice)