[1] Criteria for determining the necessity of provisional disposition to determine temporary position, and whether there is a need for preservation in a case where there are special circumstances, such as where it is highly probable that the above utility model right may be invalidated at the time of filing an application for provisional disposition seeking prohibition of infringement of the utility model right

[2] Whether the inventive step of a device is recognized by collecting and integrating existing technologies for public use (negative with qualification)

[1] A provisional disposition to determine a temporary position as stipulated in Article 714 (2) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) is an emergency or a provisional disposition which is allowed only when the person having the right to a provisional disposition has any other reason, in order to avoid the present significant damage or to prevent the imminent spread of the disputed legal relationship until it becomes final and conclusive by the lawsuit on the merits. Whether such provisional disposition is necessary or not shall be determined at the court's discretion by taking into account the relationship between the parties who have the right to a provisional disposition based on the acceptance of the application for provisional disposition in question, the anticipated failure in the principal lawsuit, and all other circumstances. Furthermore, in cases of a so-called satisfactory provisional disposition which imposes the duty of omission as a prohibition of infringement of utility model right as stated in the judgment on the merits, more careful and more careful consideration should be taken into account in determining the necessity to preserve the disputed legal relationship, so if the right such as utility model right, etc. is acknowledged to be invalidated, the application for provisional disposition is reasonable.

[2] If a registered device has a characteristic of collecting and integrating existing technology for the public use, the inventive step of the device shall not be recognized unless it has a separate difficulty in combining it, or it can be deemed that there exists a new increase effect beyond the expected effect from an known prior art.

[1] Article 714(2) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see current Article 300 of the Civil Execution Act) Articles 4 and 32 of the former Utility Model Act (amended by Act No. 5577 of Sep. 23, 1998) / [2] Articles 4 and 32 of the former Utility Model Act (amended by Act No. 5577 of Sep. 23, 1998)

[1] Supreme Court Decision 92Da40563 delivered on February 12, 1993 (Gong1993Sang, 971) / [2] Supreme Court Decision 95Hu1517 delivered on November 26, 1996 (Gong1997Sang, 88), Supreme Court Decision 97Hu846 delivered on December 11, 1998 (Gong199Sang, 129)

Creditors

The debtor

Daegu High Court Decision 2002Na7405 delivered on May 15, 2003

The judgment below is reversed, and the case is remanded to the Daegu High Court.

1. The judgment of the court below

The court below, based on its evidence, found the following characteristics: the obligee’s registered device of this case (registration number omitted) is pertaining to diversary toilets combined with washing equipment and foul waste-preventive equipment for the purpose of cutting off water and preventing excreta; it installs pumps within water tanks installed after transformation; it connects pumps and dives with divers; it connects pumps and dives with divers; it is possible for the obligee to dives and diversates with diversing equipment for the purpose of preserving divers and divers for the reason that the obligee’s physical properties are different from the diversary screen for the purpose of diversing and diversing out the diversary screen for the reason that the obligee’s physical properties are different from the diversary screen for the purpose of diversing and diversing out the diversary screen for the reason that the divers and diversary screen for the purpose of divers and diversing.

2. Judgment of the Supreme Court

A. The provisional disposition to determine a temporary position as stipulated in Article 714(2) of the Civil Procedure Act is an urgent and provisional disposition which is allowed by the person having the right to a provisional disposition for the purpose of preventing the present significant damages or imminent spread between the disputed legal relationship until it becomes final and conclusive by the lawsuit on the merits. The issue of whether such provisional disposition is required shall be determined jointly with the court's discretion, taking into account the interests and interests of both parties depending on the acceptance of the application in question, the anticipated failure in the lawsuit on the merits, and all other circumstances. Furthermore, in the case of a so-called satisfactory provisional disposition which imposes the duty of omission, such as the prohibition of infringement of a utility model right, as ordered by the judgment on the debtor on the merits, in determining the necessity to preserve the provisional disposition, the application for provisional disposition shall be determined more carefully in consideration of all the above circumstances, and in case where there are special circumstances such as the possibility that the right such as the utility model right may become null and void in the future, it shall be determined that the application for provisional disposition between the parties should be preserved in consideration of equity among the parties.

B. A device registered under Articles 32 and 4 of the former Utility Model Act (amended by Act No. 5577 of Sep. 23, 1998) is a device publicly known or published in a publication published at the time of application to invalidate non-obviousness by prescribing that the device shall be invalidated if the device can easily be designed by a person with ordinary knowledge in the art to which the device pertains, and thus, the device without non-obviousness shall be invalidated. If the registered device has a characteristic for collecting and integrating existing technology in the publicly known public domain, it shall be deemed that there exists a separate difficulty in integrating the device, or that there is a new increase effect beyond the expected effect from the publicly known prior art (see, e.g., Supreme Court Decisions 95Hu1517, Nov. 26, 1996; 97Hu8466, Dec. 11, 1998).

C. Therefore, in light of the above legal principles, the registered device of this case and the cited device 1 and 2 compared to the cited device at the time of the registration device of this case and the original adjudication. According to each evidence adopted by the court below, all of the registered device of this case and the quoted device 1 are installed after the alteration, and they are installed inside the water tank, and they are installed with dump, and they are installed with dump, but the registered device of this case is identical to the structure of the registered device of this case. However, the registered device of this case is divided by water directly dump, while the dump 1 of this case is installed additionally with water, there is no possibility that the dump 2 of this case can be combined with the registered device of this case, and there is no difference between the registered device of this case and the dump 2 of this case and the new dump 2 of this case, since the dump 2 of this case cannot be seen as having a new dump or 2 of this case.

Nevertheless, the judgment of the court below which concluded that the registered appeal of this case is necessary to preserve the provisional injunction against infringement based on the utility model right of this case on the premise that the invention has newness and inventive step, is erroneous in the misapprehension of legal principles as to the inventive step of the device, thereby affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)