[1] Whether to recognize the scope of rights of a registered design consisting solely of the publicly notified part (negative)

[2] Criteria for the recognition of newness and creativity of a design combining the shape and shape of an open space

[3] The degree and method of expression of a design to be judged in determining the similarity or similarity of a design

[1] In a case where the registered design does not create new creation and is identical with the publicly known design or the design indicated in the publication distributed prior to the filing of the application, the scope of the right cannot be recognized without relation to the existence of the registration invalidation trial.

[2] Even though each shape and pattern of a design belongs to an open space, if they are combined to create a new decoration and aesthetic sense, and if they are deemed an intelligent device to the extent that they could not be easily created, the Speaker may be considered to be a device with a new decoration and creativity. However, if the combination of individual shape and pattern does not cause a new decorations or if it does not have value as a technical creation, it cannot be a design registration due to lack of originality and creativity.

[3] The Speaker subject to a newness judgment of the Speaker or similar judgment with the prior design can be the object of comparison as long as it is possible to grasp the gist of the Speaker by supplementing not only the Speaker who has clearly clarified the whole form, but also the lack of expression in materials based on the empirical rule.

[1] Articles 5 (1), 18 (see current Article 39 (1)), 34 (see current Article 43), and 49 (1) 2 (see current Article 69) of the former Design Act / [2] Article 5 (1) and (2) of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990) / [3] Articles 5 (1) and 7 (see current Article 8) of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990)

[1] [2] [3] Supreme Court Decision 96Hu450 delivered on November 12, 1996 (1) / [1] Supreme Court Decision 90Hu2119 delivered on September 24, 1991 (Gong1991, 2615), Supreme Court Decision 93Hu1773 Delivered on December 2, 1994 (Gong195Sang, 494), Supreme Court Decision 95Hu1135 delivered on January 26, 1996 (Gong196Sang, 791) / [2] Supreme Court Decision 83Hu59 delivered on April 10, 1984 (Gong1984, 886), Supreme Court Decision 9Hu10149 delivered on March 31, 1992 (Gong1954, Nov. 24, 1995) / [3] Supreme Court Decision 196Hu193549 delivered on March 194, 1992

Claimant (Patent Attorney Lower-soo et al., Counsel for the plaintiff-appellant)

Appellant (Patent Attorney Kimdo-le et al., Counsel for the defendant-appellant)

Korean Intellectual Property Trial Office Decision 95Hun-Ba47 dated February 16, 1996

The original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Trial Office.

We examine the grounds of appeal.

1. According to the reasoning of the original trial decision, the court below determined that the purport of the registered design of this case (registration number omitted) with respect to the "hacks for the purpose of concluding the strings" applied on January 17, 1990 and registered on February 7, 1991 is the shape and shape that sticks the tampt to the lower part of the protruding part of the original protruding part, in the shape and shape of the vacant part where the strings are connected to one side of the strings for the purpose of concluding the strings, and the shape and shape of the strings which can be completed on the other side, and the design is similar to the 3th, 74, 74-1 (O. 4, 1986) of the registered design of this case, and the design of this case is not identical to the strings of the registered design of this case, and the design of this case is similar to the stringing part of the registered design of this case, which is connected to the new registered design of this case.

2. However, if a registered design does not have a new creation and is the same as the registered design or a publication published prior to the application, the scope of rights cannot be recognized without relation to the existence or absence of the invalidation trial (see, e.g., Supreme Court Decisions 93Hu1773, Dec. 2, 1994; 95Hu1135, Jan. 26, 1996); on the other hand, if the registered design appears to be an intelligent device to the extent that it can not be easily created, the design can be deemed to be a device with new and creativeness, but the combination of individual shape and shape would not cause new and creative sense, or if it does not have any technical value as a new creation, it shall not be considered to be new and new (see, e.g., Supreme Court Decision 99Hu1594, Apr. 15, 1995).

3. Examining the registered design of this case in light of the record, it is difficult to cite the shape and shape of the 3-dimensional shape of the new design in comparison with the 3-dimensional shape of the new design on the 4-dimensional shape of the new design on the 3-dimensional shape of the new design on the 3-dimensional shape of the new design (the 4-dimensional shape of the new design on August 18, 1989 and the 4-dimensional shape of the new design on the 3-dimensional shape of the new design on the 4-dimensional shape of the new design on the 3-dimensional shape of the new design on the 4-dimensional shape of the new design on the 3-dimensional shape of the new design on the 4-dimensional shape of the new design on the 3-dimensional shape of the new design on the 4-dimensional shape of the new design on the 3-dimensional shape of the new design on the 3-dimensional shape of the new design on the 4-dimensional shape of the new design on the 3-dimensional shape of the new design.

Nevertheless, the court below held that the registered design of this case is not similar to the publicly notified design without conducting any deliberation on the cited design (1) and (2) for the same reason as the written explanation, and did not constitute an unlawful act that affected the decision of the court by misunderstanding the legal principles as to the similarity or creativity of the design, thereby failing to exhaust all necessary deliberations or by misunderstanding facts contrary to the rules of evidence. The appeal pointing this out has merit.

4. Therefore, without examining the remaining grounds of appeal, the original decision is reversed, and the case is remanded to the Korean Intellectual Property Office Appeal Trial Office. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-soo (Presiding Justice)