The case reversing the original adjudication that the rejection ruling is justifiable on the ground that the invention is identical to the cited invention without providing an opportunity to state opinions on this point, with respect to an application for invention which has a possibility of being new and non-obviousness, but has an unspecified part in the description of the claim; and

Although the two inventions are identical in that the purpose of the two inventions is to distinguish the viruss that cause AIDS infection and to examine whether they are infected, unlike the diagnosis of infection based on the virus extractions generally extracted from the patient's blood cells in the composition of the technology, the original invention is different in terms of using human Tan-lympophos friendly viruss (rum-lymirs III) or their navigations, which are obtained from the patient's blood cells distribution site, and it is possible to further facilitate the development of viruss with the appearance of permanent cells, and thus, there is room to recognize the originality and inventive step of the original invention as being new and inventive step, but it is not likely that the original invention can be interpreted by expanding the method of using the vis infections, etc. obtained from all permanent cells cells because it is not specified in the claim's description, and thus, it is not possible to reject the original invention without being registered under Article 197 of the former Patent Act (amended by Ordinance of the Korean Intellectual Property Office No. 191, Feb. 19, 1997).

Articles 6-2 and 119 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) (see Articles 29(3) and (4), and 159(1) of the current Patent Act)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 4540, Nov. 13, 1979) (Law No. 1980,12430) (Law No. 1984,599), 81Hu639, May 12, 1992 (Gong192,1862)

Attorney Kim Tae-tae et al., Counsel for the defendant-appellant

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 90 Ba1034 dated January 30, 1992

The original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office.

We examine the grounds of appeal.

According to the original decision, the court below determined that the summary of the invention of this case is the method of detecting the HLVvivivivivivivivivivivith of the sample using an anti-viral part of the HTVvivivivir, the incentive of the virus, the viral part of the viral part of the sample using an anti-viral part of the HTVvirosis (HTV-III virus; hereinafter HTV-IIIvir) or the viral part of the viral part of the viral part of the invention of this case, and that the cited invention is identical to the HV invention of this case with the NAS 10th of the HHV 16th of this case, which is recognized as immunodeficiency (LAS) or the viral part of the patient's viral part of this case, which is identical to the NAV invention of this case, and thus is not identical to the NAV invention of this case.

However, according to the records, the two inventions are identical in that the purpose of both inventions is to examine the separation and infection of viruses which causes AIDS. However, unlike the diagnosis of whether the cited invention is infected by virus based on the virus extracted from the patient's blood cells, the invention of this case differs in terms of using HTLV-III protein or its resistance, which is generally obtained from the patient's blood cells, and it is possible to continuously produce viruses due to the distribution of such permanent cells, so it is possible to facilitate the development of virus's results, which are newness and inventive step of the invention of this case. However, since there is no express permanent cells in the patent claim, it is likely that the cited invention might be expanded by the method of using the HTLV-Deteination, etc., which is obtained from all permanent cells, and thus, it is difficult for the court below to determine the opportunity to state its opinion in accordance with Article 19 of the former Patent Act, the invention of this case should be given the opportunity to state its opinion in accordance with Article 19 of the former Patent Act.

However, the court below held that the invention of this case is identical to the invention of this case on the ground that the purpose of both inventions is the diagnosis of AIDS without failing to exhaust all necessary deliberations on the new technical composition and action effects of the invention separate from the cited invention, and that the purpose of both inventions is the same in terms of diagnosis of AIDS, and that the method of distinguishing the diagnosis is adopting a similar immunodeficiency analysis method, the court below erred by misapprehending the legal principles of Article 6-2 of the former Patent Act and by failing to exhaust all necessary deliberations on the technical composition and action effects of the invention of this case

Therefore, the original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Trial Office. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Yong-sik (Presiding Justice)