[1] In a case where an invention which constitutes an essential element of a human body does not constitute medical practice such as surgery or treatment method conducted on the human body, whether the invention can be protected as a patent (affirmative with qualification)

[2] The case holding that the patent application invention, which constitutes an essential element of the human body, belongs to an invention "industrially usable"

[1] The grounds for deeming that an invention, which is an essential element of a human body, is excluded from the subject of a patent, include that medical practice is closely related to human dignity and life, that all persons should have the right to choose and access medical methods that can diagnose, treat, mitigate, or prevent a disease through a doctor's consent, and that if an invention is an essential element of a patent, the doctor's infringement of the patent in the performance of medical practice becomes pathy and makes it difficult to freely access medical practice. Thus, even if an invention is an essential element of a human body, unless it falls under medical practice such as surgery or treatment methods conducted by the human body, it can be protected as an industrial use, except in cases where a patent can not be granted because it falls under "an invention which is likely to disrupt public order or good morals, or to harm public health" as provided in Article 32 of the Patent Act because it inevitably damages the human body, or restricts the physical freedom without humanitarian restraint.

[2] The case holding that the invention applied for a "swebing method" is an essential element of the human body, but it is not a medical practice, but an cosmetic act, and it cannot be deemed that it does not necessarily cause damage to the body or restraint on the physical freedom of the body in the process of executing the invention, and it is an invention that is likely to cause harm to the public order or good morals or harm public health, and thus, it constitutes "an invention that can be used for industry" under the main sentence of Article 29 (1) of the Patent Act.

[1] Articles 29(1) main sentence and 32 of the Patent Act / [2] Articles 29(1) main sentence and 32 of the Patent Act

[1] Supreme Court Decision 90Hu250 decided Mar. 12, 1991 (Gong1991, 1183)

LL REAL (Patent & Patent Attorney Hong Sung-jin et al., Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

June 17, 2004

1. The decision made by the Intellectual Property Tribunal on August 28, 2003 on the case No. 2002 Won4055 shall be revoked;

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the instant trial decision

A. Application for patent application for the invention of this case and rejection ruling

(1) On October 197, the Plaintiff filed an international patent application with the Korean Intellectual Property Office on October 10, 1997 under the Patent Cooperation Treaty (PC/FR198/02131, the number of French application 97/12713), and filed a translation with the Korean Korean Intellectual Property Office on April 7, 200, claiming priority based on the French patent application (hereinafter referred to as “instant patent application”).

(2) On February 28, 2002, the Korean Intellectual Property Office notified the Plaintiff of the submission of its opinion on the ground that the patent cannot be granted because the claim(1), (3), (5), (7), (8), and (19) of the invention claimed in the instant application form constitutes an element of invention and thus, the human body cannot be used for industrial purposes. (The Plaintiff submitted its opinion on April 24, 2002) and on September 26, 2002, the patent application invention in the instant application form was rejected on the ground that the patent cannot be granted because it was not an invention provided in the main sentence of Article 29(1) of the Patent Act. (The Plaintiff submitted its opinion on April 24, 2002)

B. Plaintiff’s appeal and the instant trial decision

Accordingly, on October 25, 2002, the Plaintiff filed a petition for an appeal against the foregoing decision of refusal with the Intellectual Property Tribunal, and submitted an amendment on November 22, 2002. However, the Intellectual Property Tribunal deliberated on it as the case No. 2002 Won405, and on August 28, 2003, the Patent Tribunal rejected the Plaintiff’s decision of rejection on the ground that the invention of this case does not constitute an industrial-use invention on the ground that it does not constitute a new ground for rejection on the ground that it does not constitute an industrial-use invention on the ground that the invention of this case satisfies the provisions of the main sentence of Article 29(1) of the Patent Act, since it is an invention with the elements of human body and cannot be indicated differently due to its characteristics on the part of the interim sensium as well as on the specific restoration product. The patent application invention of this case does not constitute an invention on the ground that it does not constitute a new ground for rejection on the notice of submission of opinion at the examination stage.

C. Summary of the patent application invention of this case

The patent application invention of this case pertains to the permanent formation method (bring method of hair) of the Kenya-10 S-1's storys that applies the specific restoration product with characteristics of less than 0 to 2500 mPa, s and less than 15 g of mPa and combination capacity to the Kenyaic fiber, and the application stage of the Austria-15 mPa and the application stage of the Austria-15 mbreg without the middle mplorum, which indicates its effect, and its claims are as shown in the attached sheet.

[Evidence] Evidence Nos. 1 to 7, No. 1 to 1, and the purport of the whole pleadings

2. Determination as to the legitimacy of the trial decision

A. The plaintiff's assertion

(1) In the case of a process invention that forms an essential element of human body, the "industrial applicability" under the main sentence of Article 29(1) of the Patent Act is denied, the invention related to medical practice such as treatment method and surgery method of human disease, or the invention inevitably damages the human body or non-humanized in executing the invention. Thus, the patent application invention of this case concerns the wab method of hair that does not have any particular influence on other parts of the human body, and thus, the possibility of industrial use is not denied.

(2) The patent application invention of this case is an essential element of the patent application invention of this case, since the invention of this case is an essential element of the invention of this case where the invention of this case does not have an interim marse stage because it is the method in which the specific return products and the return products are applied to the Kenyaic fiber fiber, and the method in which the mountain margs are applied to the organic combination without an interim marse mar.

(3) In the examination stage of the patent application invention of this case, "it is not possible to use the invention for industry because the body is an essential element." However, in the decision of refusal, "the method of performing the invention of this case without an intermediate stage is publicly known in the prior art, so the invention of this case can not be claimed only because it has a technical feature in the creation product." Accordingly, the decision of refusal without giving the plaintiff an opportunity to present his opinion is unlawful. It is unlawful to accept the plaintiff's assertion that the decision of refusal without giving the plaintiff an opportunity to present his opinion is inappropriate.

B. Summary of the defendant's assertion

(1) The invention of this case is an invention of a method that constitutes a human body and does not constitute an invention that can be used for an industrial purpose as provided in the main sentence of Article 29(1) of the Patent Act, since the invention of this case is an invention of a method that constitutes a human body and its features cannot be indicated differently

(2) The patent application invention of this case is an invention of a method with a characteristic that does not have a specific return creation phase and an intermediate marse el. Thus, it cannot be deemed that there is a characteristic only by a method with no her marse mar. Moreover, it does not constitute a case where other than a method

(3) In the instant decision of rejection, it is merely a supplementary statement to the effect that the instant patent application invention is an invention whose elements are human body and which can only be described in the method, and thus is not likely to be used for industrial purposes, and thus, it cannot be deemed a new ground for rejection.

(c) Markets:

(1) We examine whether the patent application invention of this case constitutes "an invention that can be used for industrial purposes" under the main sentence of Article 29(1) of the Patent Act.

(A) The purpose of the Patent Act is to promote the development of technology by protecting and encouraging inventions and promoting the use thereof, thereby contributing to the development of industry (Article 1). Thus, an invention for which an application is filed needs to be an invention capable of industrial use in order to obtain a patent (Article 29(1) main text), and an invention pertaining to medical practices that diagnose, treat, reduce and prevent human diseases or promote health cannot be an invention capable of industrial use (see Supreme Court Decision 90Hu250, Mar. 12, 1991).

Here, the grounds for deeming that an invention which is an essential element of a human body is excluded from the subject of a patent are that medical practice is closely related to human dignity and survival, that all persons must protect the right to choose and access medical methods that can diagnose, treat, mitigate, or prevent a disease with the doctor's help, and that if an invention is subject to a patent for medical practice, the doctor's infringement of the patent in the performance of medical practice becomes cirm and makes it difficult for the doctor to freely access to medical practice. In light of the above, even if an invention is an essential element of a human body, unless it falls under medical practice such as surgery or treatment method conducted by the human body, it can be protected as a patent because it can be used for industrial purposes, except in cases where a patent can not be granted because it falls under "an invention which is likely to disrupt the public order or good public morals, or undermine public health" as provided for in Article 32 of the Patent Act by strictly restricting the freedom of the body.

(B) In full view of the purport of the argument in Gap evidence No. 4, the invention in this case is an invention related to "the method of permanent formation of Kenyan fiber with specific stages", and the "Kenyanic fiber fiber" means a substance that can be honded by honding and honding in light of light bags, so long as the invention in this case is made of light bags and can be honding in light of the above facts. According to the above facts, the invention in this case is an invention related to the method of treatment for permanent reconstruction of the hair by using the products that have been restored to the hair and the products that have been produced in mondic acid (the "the wab method of the hair"). The invention about the mondic method is an essential element of the human body, but it is not an act of beauty, and it is not an act of medical practice, but it is not likely to impair the public order or good morals, and thus, it is not likely that the invention in this case may harm the public health and order.

Therefore, the patent application invention in this case relating to the waive method of Mosp is an invention that can be used for industry under the main text of Article 29(1) of the Patent Act.

(C) As to this, the Defendant asserts to the effect that the invention of this case is an invention of a method with a characteristic that does not include a specific restoration product and a specific her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her.

Therefore, according to the purport of the whole oral argument, the examination standard of the Korean Intellectual Property Office (the "Examination Standard Book for Chemical Sector" (II), the cosmetic sector, and the possibility of industrial use for the purpose of industry) shall be deemed not to constitute an invention capable of industrial use as provided in the main text of Article 29(1) of the Patent Act: Provided, That the invention of methods of cremation using cosmetics to the human body shall be deemed not to be a salt color or an invention capable of industrial use for the purpose of industrial use as provided in the main sentence of Article 29(1) of the Patent Act: Provided, That the invention of methods of cremation using cosmetics, such as wabing methods, shall be deemed to be an invention capable of industrial use if it is different because it has characteristics only, and it shall not be deemed to be an invention capable of industrial use. However, the defendant's assertion that the invention does not constitute an invention of methods of medical practice, such as the invention in the application in the case of this case, and the defendant's decision cannot be applied to the invention in the case of this case 2.

D. Sub-committee

Therefore, the patent application invention of this case is an invention that can be used for industry under the main sentence of Article 29(1) of the Patent Act, and thus there is no ground for rejection of registration. Thus, the trial decision of this case with different conclusions is unlawful.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the trial decision of this case is reasonable, and it is so decided as per Disposition with the assent of all participating Justices.

Judges Park Dong-dong (Presiding Judge)