The case holding that the court below erred in the violation of law, which affected the judgment on the ground that there were grounds for retrial under Article 451 (1) 8 of the Civil Procedure Act, since the grounds for retrial under Article 451 (1) 8 of the same Act, where a trial decision on correction of the patent becomes final and conclusive during the period of a trial on the confirmation of the scope of patent right.

Article 451 of the Civil Procedure Act, Article 136(1) of the Patent Act

Supreme Court Decision 99Hu598 delivered on October 12, 2001 (Gong2001Ha, 2488) Supreme Court Decision 2000Da69194 Delivered on October 28, 2004 (Gong2004Ha, 1915) Supreme Court Decision 2007Hu852 Delivered on July 24, 2008

Daeung Industrial Co., Ltd. and one other (Patent Attorney Park Young-pon et al., Counsel for the plaintiff-appellant)

Defendant (Patent Attorney Tae-sung et al., Counsel for the defendant-appellant)

Patent Court Decision 2007Heo13322 Decided May 30, 2008

The judgment below is reversed, and the case is remanded to the Patent Court.

The grounds of appeal are examined.

According to the reasoning of the lower judgment, the lower court determined that the challenged invention does not fall under the scope of the right to the instant Claim 3 invention on the ground that the elements of the instant Claim 3 invention as indicated in the lower judgment are different from the corresponding elements of the challenged invention, and are not in an equal relationship, after comparing the claim 3 (Patent No. 510152) of the instant patent invention (Patent No. 5152) and the challenged invention as indicated in the lower judgment, and that the challenged invention does not fall under the scope of the right to the instant Claim 3 invention.

However, according to the records, on January 9, 2009, a trial decision to correct the claims of the instant Claim No. 3, which was after the decision of the court below was rendered by the Defendant upon the Defendant’s request for a corrective trial, was rendered and confirmed at that time. Thus, the instant Claim No. 3 invention should be deemed to have been registered by the specification after the correction was made pursuant to Article 136(8) of the Patent Act.

Therefore, the judgment of the court below which reviewed and judged whether the invention subject to confirmation falls under the scope of the right of the claim 3 invention of this case prior to correction, and there is a ground for retrial under Article 451 (1) 8 of the Civil Procedure Act. Accordingly, there is an error of law of violation of law which affected the judgment. The ground for appeal pointing this out has merit.

Therefore, without examining the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)