(영문) 특허법원 2008.6.26.선고 2007허6928 판결

(a) The Plaintiff’s patented invention (1) title: R- (R*, R*) - 2 - (4 - luludiphenyl) - 5 - (1 - methyl (1 - ethyl et al.) - - 3 - - (4 ((2) - (2) - 1 Hxol - 1 - 1 - the filing date of registration / the filing date of registration / the registration date of / the registration date of July 21, 1989 (U.S.) - July 20, 1990) - the Plaintiff’s patented invention described in attached Table No. 1610 (31) of the Plaintiff’s patented invention (hereinafter “the Plaintiff’s patented invention”).

D - Each claim of the instant patent invention has been reduced to 0 inventions in the same manner as that of the instant invention. In addition, “R- (R*, R*) - 2- (4 - 3, 6-diphenyl) - 5- (1 - methyl) - 3-phenyl- - 4- (2 (phenylambrothothothothothothothothothothothothothotho) - - 1 Hxol - - 1 - 1 - Hexane - - 1 hhhhhhhhhheptane,” and - 2 (1) - - 4 (4) - - - 4 (4) - - - 4 (2) - - - - 4 (2) - - - - - 4) ethyl.”

(b) Invention;

The comparable inventions are patent applications filed in the Republic of Korea with the application number of 1987 - 5372 on May 29, 1987, and disclosed on December 21, 1987, “Tran-6- [2- (3- or 4- - Kaundo - Zunkolol - 1-day)] - 4- - Hadrckyl column (Evidence 6) - 2- The main contents are as shown in Appendix 2.

C. The Intellectual Property Tribunal (1) rendered the instant trial decision and the process of taking over the lawsuit (hereinafter referred to as the “Patent Tribunal”). Defendant East Pharmaceutical Co., Ltd.: (2004No2142 on October 6, 2004; (2005No659 on March 28, 2005; and (3) Defendant Bohovah Pharmaceutical Co., Ltd. (hereinafter referred to as the “Patent”) filed a motion for invalidation of the instant patent invention on the grounds that the nonobviousness of the invention should not be invalidated by 2006No264 on August 17, 2006; and (4) Defendant Bohdong Pharmaceutical Co., Ltd. (hereinafter referred to as the “Patent”)’s Claim No. 271 on September 1, 2006 on the ground that the nonobviousness of the instant patent invention was neither new nor non-obviousness, nor its registration should it be invalidated by citing that the invention constitutes non-obviousness or non-obviousness without description.

(3) Meanwhile, after the filing of the lawsuit in this case, Cream Co., Ltd. was established on September 1, 2007 by dividing all of the manufacturing sector except the investment company's business sector on September 1, 2007. According to the division plan, Cream Co., Ltd., prior to the division, all of the rights related to the patent in this case or the lawsuit in this case, belongs to Cream Co., Ltd.

Accordingly, on January 28, 2008, the Co., Ltd. takes over the status of the Co., Ltd. before the split-off after filing an application for taking-off of legal proceedings with this court on January 28, 2008.

2. Determination as to whether the registration of the instant patented invention should be invalidated

A. Claim 1, 2, and 3 inventions (1) Claim 1, 2, and 3 inventions

The Defendants and the supplementary intervenors of Defendant 1 through 5, or Defendant 1 (hereinafter referred to as the “Defendant side”) have no inventive step because the claims 1, 2, and 3 have commenced specifically in the comparable inventions, and thus, they cannot be easily claimed from the comparable inventions.

On the contrary, the Plaintiff asserts that the claim 1, 2, and 3 did not specifically commence in the comparable invention, and thus, there is a newness and the effect of the claim 1, 2, and 3 is outstanding, and the inventive step is also possible because the effect of the claim 1, 2, and 3 cannot be easily predicted from the comparable invention. Therefore, this part of the issue is whether the

(2) Determination as to whether a claim 1, 2, or 3 invention is new (a) claim 1, 2, or 3 invention, and a substance subject to the claim;

Invention 1) L-LOOOE - The Parties’ claim 1 is a material invention of the same kind as that of the HOE 1, the claim 2 is a material invention of the R-OE 1, and the claim 3 is a material invention of the H-OE Kam Kam Kam Kam Kam shot. The claim 1 is first described in the claim 1. R-OE - TOE Kam Kam Kam - R - The claim 1 is located in the comparable invention. (b) - The parties’ claim 4 is located in the same structure as that of the 4th KOE Kam Kam Kam Kam 1, which is indicated in the combination with the 6th unit of the DOE 1, which is indicated in the 6th unit of the DOE 1, which is indicated in the combination with the 6th unit of the DOE 1, which is below the results of the 16th unit of the R.

R - R - Tyre column 1

- In accordance with the structural formula in which the ventilation of compound 1 among the table 1 in the table I is replaced by the International structural formula I, in the comparable inventions, the results of the measurement of the ability to suppress the costhesis of the chemical composition of the he or she provides, especially in the diverse structural ventilation of the structural formula I provided, in the comparable inventions, the R-Trhyman car uniform Ampid stated especially the results of the measurement of the ability to suppress the costhesis of the he or she provides, the R-Trhyman Ampid is already clear and specific in the comparable inventions.

B) As to this, the Plaintiff asserts in the comparable invention that there is no way to indicate that the compound of the invention was made only by the studio (materials mixed with 50 :50 % of the natural body body) and that the compound was made by the studio, and that there is no way to indicate that the compound was made by the studio, the Plaintiff asserts that the chemical formula in the form of the R- the form of the studios, one of which is one of them, in order to display only the studio according to the common display method used in this technology, is merely a chemical formula in the form of the studio, so the chemical formula written in the form of the h- the studios Kadthothal in the comparable invention’s table 1 is indicating the body body of the studio, and thus, the comparable invention cannot be deemed to have been initiated by R- the - the - the studio kmenide

Therefore, with respect to the display of strings that are excluded from strings in health belts and the above compound, the method of stating the proviso to "the above structural formula means R-Trings, S-Trings' body body," which does not indicate the three-dimensional structure structure structure," and without indicating the proviso to "R-R-Trings and S-Trings' structural formula (the structural formula means the strings' body), or the method of stating the two structural forms together with the structural formula (e.g., evidence No. 5, evidence No. 6, machinery No. 6, machinery No. 34, etc.) in the world, such as the method of indicating the structure formula, and there is no other reasonable method to recognize that there is lack of evidence to acknowledge the structural formula No. 34, 34, and 34, and 34, respectively.

In addition, the specification of comparable inventions does not include only the L-T-Trhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh

Therefore, the plaintiff's above assertion cannot be accepted.

2) Furthermore, the comparison invention description contains four different types of compounds that may result from the center of carbon of two sub-titles, and the two different types of compounds are different from Russ - suss and - suss, the remainder of which is different from r- - emuls and S- - emuls respectively, and individually heat different form of body, and then consider only tran - among them (No. 6, No. 3, No. 4, No. 6, No. 2, etc.). According to the foregoing description, the comparison invention is also described in the specification in the art of the above non-distinctive compound in the art of the non-distinctive character of the non-distinctive compound of the non-distinctive character of the non-distinctive compound of the non-distinctive character of the non-distinctive compound of the non-distinctive character of the non-distinctive character of the non-distinctive compound of the non-permanent structure of the non-permanent compound of the non-permanent structure of the non-permanent form.

4) In comparable inventions, “com-pactine (compactine)” and “2-H et al.” are introduced as “com-ponine (com-pactine)” and “H et al. (Nos. 6, 2, 6 to 10, 15 to 17, 8, and 10, according to the records of evidence Nos. 8 and 10, the above “componine” and “H et al. - - 2- marine - 3 in the form of “ponine - 4” and “ponine - 4” in the form of “ponine - ronine - 4” in the previous structure of comparison technology. Such a name can be recognized as constituting a combination of “R-2” and “ponine - 4” in the form of “H et al., the term “ponine -” in the shape of the comparison technology.

Crues of cruel species that effectively suppress the cosynthesis, with the ability to suppress it;

- 6- [2 (3- or 4 - Kapypol - one - one) - 4 - Hadropis - 2 - Hadrop 2 and an equivalent Hadrop - which is derived therefrom. In particular, in a broad range, the invention described as follows: (i) the structural formula 1's chemical compounds are provided; (ii) the absolute location arrangement of structural formula I's structural formula - as seen earlier was made in the form of "R as identified in the previous technology -" - while having a three-dimensional structure, and (iii) the part other than ruptures with diverse kinds of ruptures are designed to provide a synthetic chemical compound that can be inferred in the form of "R - in the previous technology as identified," and (iv) the composition of structural formula - as described above.

5) Meanwhile, the specification of the instant patent invention contains the following: (a) compound by the invention and, in particular, the compound of the formula (I) in the specification of the instant patent invention: (b) No. 4, 681, and 893 of the United States of America Patent No. 4, 681, and 893 cited as reference to the specification (U.S. corresponding to the U.S. corresponding patent; (c) the cited part is identical to the description of the instant patent invention (Evidence No. 6, No. 14; (d) No. 7; (e) No. 7, No. 5, No. 16, No. 1); and (e) No. - an inventor of the instant patent invention without reference to the specification of the instant patent invention; and (e) No. 5, No. 8, No. 7, and No. 3); and (e) No. - an inventor of the instant patent invention in the form of the instant patent invention in the form of the instant patent invention’s or the form of the instant term of the rept.

6) When comprehensively taking into account the above points, R-R-Trehion Kadhion is deemed to have already been specifically launched in comparable inventions. (c) R- Thhion - Whether Theptheptan was already launched in comparable inventions.

The cited inventions recognize that the nived scopic acid, which is induced from the substitution of the nives ton of the structural I compound, is a specific subject of invention (No. 6, No. 3 of the 4th to No. 5).

However, as seen above, L - Trhyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshyshysn in comparison invention.

(D) Judgment on the Plaintiff’s assertion

The plaintiff asserts in the comparable invention that R- L- in the form of bit in the form of T-T- T- T- T- T- T- T- T- T- T- T- T- T- T- T-T- T- T-T-T-T-T-h-h-heptheptane was not found to have the purpose or pharmacological activation of the original body in the form of L-heptane.

However, prior art provided to determine the similarity or inventive step of an invention is sufficient if the composition of the invention is initiated, and even if the entire technical composition is not clearly expressed due to lack of material or defect in some contents, it can be compared to the extent that a person with ordinary knowledge in the technical field can easily understand the technical content by using technical or empirical rules (see Supreme Court Decision 2004Hu2307, Mar. 24, 2006). Therefore, even if there is no actual separation of the two nature of the invention in the snow company as alleged by the Plaintiff, as seen earlier, the claim for the substance in the comparable invention is insufficient to verify the nature of the invention - as seen above, as long as the substance in the comparable invention is found to have the two nature of the invention in a concrete manner, the claim for the substance in the comparable invention can not be accepted, regardless of the fact that the substance in the art can not be patented due to the lack of description or lack of perfectness.

As seen earlier, the comparable invention is subject to patent because the R-Trehion and R-Trehionan is specifically launched in the art invention, and the material invention is non-obviousness. Thus, the registration of claims 1, 2, and 3, which are the substance invention of the Trehionan industry, shall be invalidated in entirety, and the registration of claims 3, which are the substance invention of the Trehionan industry, shall be invalidated, without any need to examine whether the claim 1, 2, and 3, are non-obviousness. The registration of claims 1, which are the substance invention of the Trehionanan industry, shall be invalidated, and the registration of claims 3, which are the substance invention of the Trehionan industry, shall be invalidated without further consideration as to whether the limited salt is patented.

B. Claim 4 to 9 inventions (1) the gist and issues of the parties' claims

While the defendant asserts that the claim 4 invention has no newness or inventive step, the plaintiff asserts that the claim 4 invention has no inventive step as well as newness.

In addition, the defendant's claim 5 to 9 inventions do not have inventive step by comparable inventions.

On the other hand, the plaintiff asserts that the invention has non-obviousness.

Therefore, this part of the issue is whether the registration of the invention should be invalidated due to the lack of a newness or inventive step in the case of the invention 4 of the claim, and whether the registration of the invention should be invalidated due to the lack of inventive step in the case of the invention 5 or 9 of the claim. The criteria for determining the non-obviousness of the claim 4 or 9 of the claim 4 or 9 of the claim (A) and the inventive step of the salt compound

Inventions 4 through 9 inventions are those related to salt compounds, such as R- Cyllium salt in the Thyllane acid, kyllium salt in the Thyllium, Hcalium salt, N-Meglycerium, hyllium salt in the Hague, hysium infection, hysium infection, and hysium infection in the context of comparable inventions as seen earlier.

However, it is a technology widely used in the field of technology to make a variety of salt that can be permitted in the pharmaceutically in the manufacture of drugs, i.e., a salt compound in the form of simple salt. Thus, the invention of a salt compound in the form of simple salt shall be deemed to have no inventive step from the invention of a publicly known chemical in the case where the invention of a chemical is identical with the pharmacological use, and the basic substance of a salt compound is the same as the publicly known substance, and exceptionally, the inventive step shall be recognized only in the case where there is a technical difficulty in converting a chemical into salt, or where there is a qualitative difference compared with the publicly known chemical, or where there is a significant action effect.

(B) Specific determination

1) First of all, the kinds of salt of the claims 4 through 9 are found to be found to have commenced in the comparable invention. The comparable invention presents salt formed with brinium, kium, calium, Maineium, Alineium, alineium, steel, and ionion as the metal salt that can be otherwise permitted in a pharmaceutically acceptable manner, and presents highly organic nitrogen and amloatium that are sufficiently strong enough to form the brinium and salt with amloatium (4 to 12 e.g., Claim 4, 5, 6, 8, and 9). However, the comparable invention contains Claim 4, 5, 8, and 9’s daily base salt, calium, calium, calium, calium, aline, aline, aline, aline, aline, and e.g., the invention’s claim is already established in the comparable invention invention, and thus its claim is included in the amloatium structure or amloat.

2) Next, we examine whether or not there is any technical difficulty in manufacturing salt compounds of the 4 through 9 inventions. In relation to the manufacture of the above salt compound, the specification is ordinarily permissible for 1 ton of this invention, malphical solvent or other appropriate solution together with adequate base for salt, fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium fluorium - fluorium 6.

3) Lastly, the claim 4 or 9 contains qualitative or quantitative effects compared to R-Theptane. The specification of the patented invention of this case states that "in fact, what is used in the form of salt, or what is used in the form of acid or in the scam or the scamton," and states that "the compounds of the formula (I), and (I) and (II) generally are equivalent to the active nature of the use as described in the specification." Thus, the claim 4 or 9 invention of this case states that "as regards the effect of the operation of the salt compounds of the claim 5 or 9 invention of this case, it can be acknowledged that there is no difference between the effect of the claim 4 or 9 invention of this case and the effect of the operation thereof in the form of salt, or in the form of acid or the scamton," and that "the compounds of the formula of the patented invention of this case are ordinarily allowed in the form of use as described in the specification."

However, in relation to the Hcalium infection of the claim 6 invention, the specification of the instant patent invention states that “The most desirable working pattern of the instant invention is R-Treheptane, and Hcalcalium infection,” but it cannot be deemed that the claim 6 invention has a significant effect on the Hcalium infection than R-Treheptane. Ultimately, all the salt compounds of the claim 4 through 9 are different in quality or have a significant effect on both aspects compared to R-Treheptane.

(3) Sub-decisions

Invention 4 through 9 inventions are identical to R - An invention of a compound known in the comparable invention as seen earlier - an invention of the salt of the Theptane, or an invention of the method of manufacturing the invention, which is not any technical difficulty in the manufacturing, and also is identical to R-art heptane, which is a basic substance in the operating effect. Accordingly, in the case of a claim 4 invention, the registration of the invention shall be invalidated without any need to consider whether it is new or not, and the registration of the invention 5 through 9 shall also be invalidated.

C. Claim 10 inventions (1) Summary of the parties' claims and issues

The defendant asserted that the 10 invention is not supported by the detailed description of the invention, and thus the invention is not non-obviousness, or that there is no inventive step by the comparable invention, while the plaintiff asserts that the 10 invention is not a specification specification but an inventive step. Thus, the issue of this part is whether the 10 invention is invalid due to the lack of specification or non-obviousness.

(2) Determination as to whether non-obviousness exists

Claim 10 Inventions refer to “R - Tythro - 1 - (Meethylamotho) - D- - glythrotho mix. However, R- Tythro - Tythro - - 1 - (Methoothotho) - D- - If a mixture of substances is made by mixing them with the aforesaid R- Tythro hythotho heptane acid itself, no special difference is found in its effect compared with the cited invention, since there is no express indication in the specification of the instant patent invention on the effect of the mixture of substances already launched in the comparable invention.

(3) Sub-decisions

Therefore, the registration of Claim 10 invention should be invalidated without further consideration as to whether it falls under the non-obviousness of the specification.

D. Claim 11 (1) Summary and key issue of the parties' claims

The defendant asserts that the invention of the claim 11 is not new because it is specifically launched in the comparable invention, or can easily be claimed from the comparable invention, and thus, the invention is without inventive step or is not supported by the pharmacological effect as an invention for the use of the medicine in the detailed description of the invention. On the contrary, the plaintiff asserts that the claim 11 invention is new since the invention is not specifically initiated in the comparable invention, and its effect is not easily predicted from the comparable invention, and thus, it does not constitute non-obviousness because it is sufficiently supported by the pharmacological effect as an invention for the use of the medicine in the detailed description of the invention.

Therefore, this part of the issue is whether the registration should be invalidated because the invention of the claim 11 is new or non-obviousness or falls under the lack of description in the specification. (2) Determination of newness (A) determination criteria for the existence of a claim (a)

An invention in the field of chemistry is widely known that there is a certain number of distinctive body depending on the number of butane lawsuits. Thus, an invention in the use of a specific distinctive body is not specifically initiated in a publication, etc., stating the use of a specific distinctive compound before the date of the first application, but can be patented only in cases where the use of a natural chemical compound is different in quality from that of a dead body publicly known due to the unique physical and chemical properties, etc. of the natural chemical compound, or where there is a remarkable difference in quality (see Supreme Court Decision 2002Hu1935, Oct. 24, 2003). The first requirement of the two requirements is the criteria for determining whether the elements of the first invention are new or not.

(B) Specific determination

1) Contents of the invention claimed 11

Invention 11 of Claim 11 is an invention of medicinal use, which is composed of the chemical compounds referred to in paragraph (1) with the effective quantity and limitation of the call clorratization, and the pharmaceutical products for which the composition of the limitation for treatment of clorrathers is applied, “R - Trhexan acid and R - the pharmaceutical use is permitted for the limitation thereof,” - R - Treclorthm acid and R-Treclorine - Whether the use of the relevant clorthratium is commenced in the comparable invention, and the specifications and specifications of the relevant invention, which are not the type of clorratization, are written in the form of an clorthratium, and the specifications and specifications of the relevant clorthratization technology, which are written in the form of an clorthratization, are also written in the form of an clorthratization, as seen earlier, to be written in the form of an clor compound.

B) Whether the use has commenced or not

R - As seen earlier, the invention, which is an invention recognized as a specific subject of invention by specifically commencing R-R-Treheptan as well as R-Treheptan as a result, is indicated as follows: “The invention, as if it combines a body acceptable for pharmaceutically, with a string, to provide useful pharmaceutical products as a treatment product that lowers the base quantity of the relevant invention, which consists of the effective quantity of the blood chemical compounds or the area of the invention, (No. 6, No. 5, No. 5, No. 8).” In addition, since the invention, which is an invention recognized as a specific subject of the invention, is described as the subject of the invention, “the invention,” this invention, as if it combines with the body acceptable for pharmaceutically, is described as follows: “The invention, as if it were done, shall provide useful pharmaceutical products as a treatment product that lowers the base quantity of the blood hex, or the area (No. 1 to No. 7, No. 8).

3) The Plaintiff’s assertion is determined as to the Plaintiff’s assertion. In the comparable invention, the Plaintiff asserts that: (a) in the comparable invention, the L-T-T-T-T-T-T-T-T-T-T-T-T-T-T-T-T-S-T-T-S-T-S-T-S-T-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S-S

In light of the foregoing, prior art provided in the judgment on the similarity or inventive step of a patent application invention is sufficient if the composition of the invention is initiated, and it can be compared within a certain extent even if the entire technical composition is not clearly expressed due to lack of material or lack of material. As such, in the invention of medicinal use, if specific substances, which are effective ingredients that can be considered as components, and the use of medicine thereof, are specifically launched in prior literature, the invention of use for specific substances should be considered as publicly notified, and further, the invention of use for specific substances should not be deemed as publicly notified only if objective experimental data that can confirm the use of the substance is required, as alleged by the Plaintiff. However, R-Tart, as claimed by the Plaintiff, did not confirm the pharmacologicalness of the substance, and accordingly, there is no fact that the substance’s content is in fact separated from the composition of the invention.

In fact, the numerical value indicated in the table 1 of the comparable invention is a value derived from the experiments conducted by twits, which is not the body of the above nature. However, as seen earlier, insofar as “specific substances in the comparable invention” - T-artthheptane or R-trhythic body of the nature of the art, and “the treatment of bitss etheric body of the nature of the medicine” and “the treatment of bits etheric body of the nature of the art” are specifically launched in the comparable invention, the circumstance alleged by the Plaintiff cannot be the reason that the invention of the claim 11 does not specifically start in the comparable invention. Accordingly, the Plaintiff’s above assertion cannot be accepted.

B) In addition, as stated in the specification of the instant patent invention, the Plaintiff asserts that the claim 11 invention is entitled to a patent, as the result of confirming the use or pharmacological activation of the instant patent invention by separating the nature of the instant patent invention by actually separating it, and as a result, it has a significant effect in suppressing the chemical synthesis compared to the strings initiated in the comparable invention.

However, the issue of whether a claim 11 invention has a significant effect is the issue of examining whether the invention has an inventive step. Thus, it is not necessary to examine the existence of a newness of the above invention in this part.

Ultimately, among claims 11 inventions, the term "R-Treheptan and R-Trehept - The part of the invention for the use of "the product for the use of the limitation for the treatment of the crepinrhesion et al." consisting of the blood of the crepinist crepine crepinth of the patent, which is a substance that can be called its component, i.e., specific substances, i., R-R-Treheptan and R-Trehrehion crehionthrium - the treatment of the crepinrhion crepine crepherrhium infection, and thus, no patent cannot be granted, because the invention for the use of this part is non-obviousness because it is not possible to obtain a patent, or whether the invention for the use of salt permitted under the limitation thereof is not possible. Furthermore, the registration should be invalidated without further examination.

3. Conclusion

Therefore, the decision of this case is legitimate as the conclusion is consistent with this, and the plaintiff's claim seeking its revocation is dismissed as it is without merit. It is so decided as per Disposition.