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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On June 29, 2016, the Defendant asserted that “the nonobviousness of the instant patent claim 1, 4-9 of the instant patent invention described in B below is denied or denied by prior inventions 1. Claim 2, 3, 10-13 is denied by prior inventions 1, and claim 1-6, 9, and 10 is denied by prior inventions 2. Claim 1-13 is new or non-obviousness is denied by prior inventions 1, 2, or prior inventions 1, 3, or 2, and 3 are denied by prior inventions 2, and the Intellectual Property Tribunal against the Plaintiff on November 11, 2016, the Intellectual Property Tribunal claimed that “the nonobviousness of the instant patent invention is denied by prior inventions 1-13, or by prior inventions 1, 3, or 2, and 3,” both of the instant patent claims cited by the Plaintiff and the Intellectual Property Tribunal on November 11, 2016.
Accordingly, on December 28, 2016, the Plaintiff filed the instant lawsuit seeking the revocation of the instant trial decision with this court.
3) Meanwhile, on April 28, 2017, the Plaintiff filed a petition for correction trial to correct the description 1, 7, and 8 of the instant patent invention under the Intellectual Property Trial and Appeal Board 2017No. 40, which had been pending in this court (hereinafter “the petition for correction trial related to the instant patent invention”).
(2) On July 14, 2017, the amendment to the corrective statement (hereinafter referred to as “relevant amendment”).
However, the Korean Intellectual Property Tribunal’s amendment on July 26, 2017 constitutes an amendment to the substance of the amendment, and thus, is inappropriate. A petition for a trial to correct the correction is a substantial modification of the claims among the corrected matters, and thus, is amended by Act No. 14035, Feb. 29, 2016; hereinafter the same applies).
Article 136(3) is in violation of Article 136(3), and part of the invention falls under Article 42(4)2 of the former Patent Act because it is unclear by correction.