(a) In a patent application for an invention related to a micro-organism, the owner of the micro-organism deposited with the international depository prescribed in Article 7 of the "Bapest Treaty on the International Recognition of the Deposit of Micro-Organisms for Patent Procedure" and the deposit requirements prescribed in the main sentence of Article 1(2) of the former Enforcement Decree of the Patent Act (Presidential Decree No. 10428, Jul. 30, 1981)

B. Whether the micro-organism located overseas is included in the scope of the micro-organism easily obtained by a person with ordinary knowledge in the field to which the invention pertains, as prescribed in the proviso of Article 1(2) of the former Enforcement Decree of the Patent Act (Presidential Decree No. 10428, Jul. 30, 1981)

(c) Where the micro-organism used in the invention is deemed to be included in the scope of the micro-organism prescribed in the proviso of Article 1(2) of the Enforcement Decree of the above "B" and it may not be deposited, even if the micro-organism produced by the invention falls under the intermediate or final products produced by using the starting micro-organism

A. In a patent application for an invention related to a micro-organism, the main text of Article 1(2) of the former Enforcement Decree of the Patent Act (amended by Presidential Decree No. 10428, Jul. 30, 1981; Presidential Decree No. 12199, Jul. 1, 1987; Presidential Decree No. 1219, Jul. 1, 1987; Presidential Decree No. 12199; Presidential Decree No. 13078, Aug. 28, 1990) added an international depository under Article 7 of the former Enforcement Decree of the Patent Act (amended by Presidential Decree No. 10428, Jul. 30, 1981; Presidential Decree No. 12199) to the depository institution of a micro-organism designated by the Commissioner of the Korean Intellectual Property Office. However, the amended Enforcement Decree of the Patent Act (amended by Presidential Decree No. 121350, Jul. 1, 1987) is limited to the depository institution designated by the Republic of Korea.

B. The proviso of Article 1(2) of the former Enforcement Decree of the Patent Act (amended by Presidential Decree No. 10428, Jul. 30, 1981; Presidential Decree No. 11254, Nov. 5, 1983); Article 1(2) of the former Enforcement Decree of the Patent Act provides that if a person with ordinary knowledge in the field to which the micro-organism invention pertains can easily obtain it, he may not deposit it. In this case, even if the micro-organism does not necessarily have to exist in the Republic of Korea, and even if it does not exist in the Republic of Korea, if it is acknowledged that the domestic party can easily obtain it

(c) Even though the micro-organism used in the invention is not the starting micro-organism, but the intermediate or final products produced by using the starting micro-organism, if the micro-organism required in the process of producing it can be equitable or easily obtained by the party concerned, and if the process of manufacturing the intermediate or final products is indicated in the specification so that the party concerned can easily reproduce it, it can be seen that it can be easily obtained by the party concerned. Thus, such final bio-biological or intermediate products may not be considered to be included in the micro-organism of the provisions of the proviso of paragraph (b) above, and shall not be deposited.

A. B. (C) Article 8(3)(a) of the former Patent Act (amended by Act No. 4207, Jan. 13, 1990); Article 7 of the Addenda (amended by Presidential Decree No. 10428, Jul. 30, 1981; Presidential Decree No. 1219, Jul. 1, 1987); Article 1(2) of the former Enforcement Decree of the Patent Act (amended by Presidential Decree No. 12199, Jul. 1, 1987; Presidential Decree No. 1219, Aug. 28, 1990); Article 2(1) main sentence of Article 2(1); proviso of the Addenda (amended by Presidential Decree No. 13078, Jul. 1, 1987; Presidential Decree No. 13078).

A.C. Supreme Court Decision 90Hu1512 delivered on Aug. 27, 1991 (Gong1991, 2439) (Gong118 delivered on Nov. 12, 1991). Supreme Court Decision 91Hu1533 delivered on Mar. 31, 1992 (Gong1992, 143 delivered on Oct. 13, 1987) (Gong1987, 1720). Supreme Court Decision 88Hu42 delivered on Aug. 8, 1989 (Gong1989, 1362)

Busan High Court Decision 200Na14488 delivered on August 1, 2002

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Office Decision 88Na1177 Dated June 26, 1990

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

We examine the grounds of appeal.

1. Under its reasoning, the original decision on the trial of the original invention is related to the Habd Mabd Mad Mad Mad Mad Z 1, PBR 1, PH 107, PGH 6, etc.) and PGH cells (cell cells-1, E.colilili 1294, E.colili x 1776) that deposit the original invention with the international depository (ATCC) under the Mad Mad Mad Mad Mad Mad Ma, but the depository can not be deemed to be the depository designated by the Commissioner of the Korean Intellectual Property Office at the time of the application of the original invention, and otherwise, it cannot be deemed to have satisfied the requirements of the Mad Mad Mad Ba 2, which can prove that each of the above microorganisms is an officially known micro-organism in the Republic of Korea, or that there is no easy entry list, etc., and thus, it is justified for the applicant to obtain at least the deposit of the foregoing AE Ma Ma Mad Ma Ba Mad Ma.

2. The main text of Article 1(2) of the former Enforcement Decree of the Patent Act (Presidential Decree No. 10428, Jul. 30, 1981; Presidential Decree No. 10428, hereinafter referred to as the "Enforcement Decree of the Patent Act") which was in force at the time of the patent application of this case is limited to the organizations designated by the Commissioner of the Korean Intellectual Property Office by stipulating that any person who intends to file a patent application for an invention using a micro-organism should deposit such micro-organism with the organizations designated by the Commissioner of the Korean Intellectual Property Office and attach a document certifying the deposit thereof to the application. The main text of Article 2(1) of the amended Enforcement Decree of the Patent Act (Presidential Decree No. 12199, Jul. 1, 1987; Presidential Decree No. 12199, Jul. 1, 199) added an international depository under Article 7 of the Additional Decree of the Patent Act concerning the international approval of the deposit of micro-organism under the patent procedure, but the amendment of the above Article 17(1) of the Treaty shall enter into force.

3. However, the proviso of Article 1(2) of the Enforcement Decree of the same Act, which was in force at the time of the filing of the instant application, stipulates that if a person with ordinary knowledge in the field to which the micro-organism invention pertains can obtain easily, he may not deposit the micro-organism. In this case, even if the micro-organism is not necessarily required to be present in the Republic of Korea, and even if it is existing in a foreign country, if it is acknowledged that the micro-organism can be obtained easily, it

In addition, even though the micro-organism used in the invention is not the starting micro-organism, but the intermediate or final products produced by using the starting micro-organism, if it is indicated in the specification that the process of manufacturing the intermediate or final products can be easily reproduced by the party concerned by using the germs, etc. of the starting micro-organism and the publicly known micro-organism, if it is indicated in the specification that the process of manufacturing the intermediate or final products can be easily reproduced by the party concerned, it shall be deemed that the party concerned can easily obtain it. Thus, such final living or intermediate products shall also be deemed to be included in the scope of the micro-organism, and shall not be deposited (see Supreme Court Decision 87Hu45, Oct. 13, 1987).

According to the records, 198.9.1, 198.1, 2GH 1, the applicant's written opinion, 2GH 2, and 3G H 1, which were available during the process of re-cooperative PCC 31622, 370, KG-1, which is a cell line, among the main cells, is ATCC 8031, 294, E.colix 12, 3146, 31537, each of the above ATCC 2, which would have been easily obtained by the 2GH 1, and which would have been used by the 2GH 1, 277, 3GH 1, and which would have been easily obtained by the 2G HG 1, and which would have been used by the 2G 97, the court below may find that there were no specific conditions among them, and that there were no reasonable methods of 9GH 1,67, 2016.

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 Kim Yong-ju (Presiding Justice)