[1] Whether an act of executing an invention identical or equivalent to a patented invention, the scope of which is not recognized, constitutes a violation of patent rights (negative)

[2] Where a trial decision to correct the scope of the patent claim becomes final and conclusive with respect to a patented invention whose scope of the patent right could not be recognized due to the defect in the scope of the patent claim, the case affirming the judgment of the court below which regarded the patent claim before correction as the patented invention in determining whether the act of manufacturing and selling the product committed before correction constitutes the

[1] An invention that cannot be deemed to have all essential elements required to achieve its effect on the claims of a patented invention, is registered in violation of Article 8(4) of the former Patent Act (amended by Act No. 4207 of Jan. 13, 190), and the scope of rights cannot be recognized even before the decision invalidating the patent becomes final and conclusive, and the act of executing an invention identical or equivalent to a patented invention, the scope of rights of which is not recognized, does not constitute a violation of patent rights.

[2] The case affirming the judgment of the court below which regarded the previous patent claim as the patented invention subject to infringement in determining whether the act of manufacturing and selling the products of the defendant committed before correction constitutes a violation of patent right, where a trial decision to correct the patent claim becomes final and conclusive with respect to the patented invention whose scope of right could not be recognized due to the defect in the patent claim

[1] Articles 8(4) (see current Article 42(4) and 158 (see current Article 225) of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) / [2] Articles 8(4) (see current Article 42(4)), 158 (see current Article 225) of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990), 13(1) of the Constitution, Article 1(1) of the Criminal Act

Defendant

Prosecutor

Seoul Central District Court Decision 98No8499 delivered on January 21, 2005

The appeal is dismissed.

1. (A) An invention which cannot be deemed to have all essential elements necessary for accomplishing its effect is registered in violation of Article 8(4) of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990; hereinafter the same shall apply) and its scope of right cannot be recognized even before a final and conclusive decision invalidating the patent becomes final and conclusive. Under the legal principles that do not constitute a violation of patent rights, the act of executing an invention in the same or equal relationship with a patented invention for which the scope of right is not recognized, under which the Defendant’s act does not constitute a violation of patent rights. According to the legal principles that do not constitute a violation of patent rights, the claim(s) of the patented invention of this case, for which the Defendant cannot be deemed to have all essential elements of the patented invention at the time of manufacturing and selling the apparatus for exchange and distribution as stated in the facts charged, is contrary to Article 8(4) of the former Patent Act, and thus, the scope of rights cannot be recognized. Thus, regardless of whether the Defendant’s act is identical with or equal with the claims previously asserted.

(B) Meanwhile, according to the records, it is recognized that a trial decision to correct the claims of the patented invention of this case became final and conclusive after the defendant's act of manufacturing and selling it, and the product manufactured and sold by the defendant can be an object identical or equal to the claims of the correction after the correction becomes final and conclusive, and the correction does not become null and void after a separate correction invalidation trial, the patented invention shall be deemed to have been established and registered by the corrected claims. However, in light of the legislative purport of Article 13 (1) of the Constitution, Article 1 (1) of the Criminal Act, and Article 1 (1) of the Criminal Act, and the legislative purport of the patent claim of the patented invention have normative effects such as external publication by objectively defining the areas where the patentee can directly work and the area where the third party does not infringe upon the patent right, in determining whether the act constitutes the infringement of the patent right, the retroactive effect of correction cannot be viewed as a matter of course, and as a result, the court below did not err in the misapprehension of legal principles as to the infringement of the patent right of this case.

2. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Zwon (Presiding Justice)