[1] Whether it is possible for two or more persons to file a joint petitioner for a trial on the same patent with the defendant to file a joint petitioner for a trial on the trial by jointly filing a petition for the invalidation trial (negative)

[2] In a case where a trial decision invalidating a patent has become final and conclusive in another case while a lawsuit seeking revocation against a trial decision invalidating a patent becomes void, whether the said revocation lawsuit is unlawful (affirmative)

[1] When a part of co-litigants is omitted, an indispensable co-litigation which is able to apply for the addition of the omitted parties until the closing of argument in the first instance trial refers to only an essential co-litigation which is caused by a defect in the standing of a party, as a result of the omission of part of co-litigants, and the validity of a judgment is expanded to a third party, and the judgment is only deemed necessary to become final and conclusive, and it does not include a case of a similar indispensable co-litigation. Thus, a lawsuit seeking a trial for revocation of a trial decision rendered by two or more co-litigants jointly with respect to the same patent right is not an essential co-litigants, which is not a co-litigants, and thus, if some of co-litigants are omitted, the additional application

[2] When a trial decision invalidating a patent in another case has become final and conclusive in the course of a lawsuit seeking revocation of a trial decision invalidating the patent, the patent right is deemed to have never existed from the beginning. As such, the relevant trial decision holding a non-existent patent as a result of the trial decision is unlawful, but as long as the patent becomes null and void, it is reasonable to view that the patent does not have any legal interest to seek revocation of the trial decision as long

[1] Article 63-2 of the Civil Procedure Act; Articles 133 and 186 of the Patent Act / [2] Articles 133 and 186 of the Patent Act; Article 248 of the Civil Procedure Act (Institution of Lawsuit)

[1] Supreme Court Decision 96Da41496 delivered on January 23, 1998 (Gong1998Sang, 578) / [2] Supreme Court Decision 2006Hu2714 Delivered on January 26, 2007

Plaintiff (Law Firm Barun, Attorneys Kim Jung-soo et al., Counsel for the plaintiff-appellant)

Defendant (Patent Attorney Cho Jae-han, Counsel for the defendant-appellant)

February 13, 2007

1. The instant supplementary application is dismissed.

2. The instant lawsuit shall be dismissed.

3. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on May 19, 2006 on the case No. 2005DaDa2094 shall be revoked.

1. Basic facts

[Ground for Recognition: Unsatisfy, Gap evidence 1 to 4]

On December 8, 2001, the Plaintiff was registered with a patent on May 17, 2004 with the registration number of No. 43153 on May 17, 2004, and the Plaintiff is the patentee of the instant registered invention. The registered invention of this case is the characteristics of the instant registered invention by means of a teromatic process, face-to-face type process, face-to-face type process, and inner expansion type process, which consist of a tero-ray system installed immediately after the teroping type process of the manufacturing device. In order to transfer the ero-type 2nd type of the erop type of the eropology to the expansion type process by prompt and accurate reflection, the transfer of the erop type of the erop type of the erop type to the erop type 90∑ unit without narrowing the erop-type type of the erop type of the erop type.

The defendant and the non-party corporation jointly filed a registration invalidation trial on the ground that the invention can not be easily described from the publicly known invention of this case, and on the same ground, the Intellectual Property Trial and Appeal Board rendered a trial decision on the claim of the defendant and the non-party corporation for the same reason.

On May 25, 2006, the certified copy of the trial decision of this case was served on all the parties to the trial. On June 23, 2006, the plaintiff filed a lawsuit against only the defendant among the claimant, seeking the revocation of the trial decision of this case with the court.

2. Whether the Plaintiff’s additional request is lawful

On July 20, 2007, when the plaintiff filed the lawsuit of this case, the plaintiff omitted the non-party corporation, one of the co-Appellants, from the defendant's indication. In addition, the plaintiff filed an additional application to this effect.

However, when part of the co-litigants are omitted, it means only an essential co-litigation which causes defects in the party's eligibility by omitting part of the co-litigants until the closure of pleadings in the first instance trial. Since the effect of judgment is expanded to a third party, it is only recognized that the judgment is necessary to be combined, and it does not include the case of a similar indispensable co-litigation (see Supreme Court Decision 96Da41496, Jan. 23, 1998, etc.). Thus, a lawsuit seeking a trial for revocation of a trial decision against the same patent right by two or more co-litigants, such as the lawsuit in the case in this case, is not an essential co-litigation which is enforced jointly by the co-litigants, and thus, the plaintiff's application is unlawful, and therefore, the non-party corporation cannot become a party to the lawsuit in this case.

3. Whether the lawsuit of this case is legitimate

Before determining the merits, we examine the legitimacy of the instant lawsuit ex officio.

A. As such, there was no lawsuit seeking the revocation of the instant trial decision against the non-party corporation within the filing period. As such, the part of the instant trial decision regarding the non-party corporation’s appeal was finalized, and therefore, the registered invention of this case had become final and conclusive.

B. Where a trial decision invalidating a patent has become final and conclusive in other cases during the course of a lawsuit seeking revocation of a trial decision invalidating the patent, the patent right is deemed to have never existed. As such, the relevant trial decision holding a non-existent patent is unlawful. However, as long as the patent becomes null and void, the Plaintiff who filed a lawsuit seeking revocation of the trial decision does not have any legal interest in seeking revocation of the trial decision (see, e.g., Supreme Court Decision 2006Hu2714, Jan. 26, 2007).

As seen earlier, since the above adjudication on invalidation became final and conclusive in relation to the non-party corporation, the lawsuit in this case did not have the interest in the lawsuit in accordance with the confirmation of invalidation of the registered invention in this case.

C. In a case where it is interpreted that a trial decision on the remaining co-appellant does not become final and conclusive only by filing a lawsuit seeking cancellation of a trial decision against one of the co-appellants, the remaining co-appellants shall be subject to the time limit for filing a lawsuit, but the trial decision is not final and conclusive (generally final and conclusive means the time limit for filing a lawsuit). In a case where a trial decision on one of the original patents is not enforced and a separate trial decision becomes final and conclusive, as long as a trial decision is not joined (generally final and conclusive means the time limit for filing a lawsuit) and a separate trial decision becomes final and conclusive, and the result should be different due to the unexpected circumstances that the appeal is jointly filed or combined (the appeal against one person does not fall under the suspension or suspension of the trial procedure under Article 139(4) of the Patent Act). On the other hand, a person who is not the defendant may choose a voluntary defendant without being aware of the fact that he or she did not know that he or she did not participate in the procedure for cancellation of a trial decision.

4. Conclusion

Therefore, the plaintiff's additional application of this case is dismissed, and the lawsuit of this case is unlawful, and it is so decided as per Disposition.

Judges Lee Ki-taik (Presiding Justice)