[1] The case reversing the judgment of the court below on the ground that a correction trial on the specification of the pertinent patented invention becomes final and conclusive while a patent infringement lawsuit is pending

[2] Whether a court which reviewed a patent infringement lawsuit may decide on the existence of grounds for invalidation of a patent even before a final and conclusive decision on invalidation of a patent becomes final and conclusive (affirmative), and whether a prohibition and a claim for damages based on a patent right clearly invalid constitutes an abuse of rights (affirmative)

[1] The case holding that the judgment of the court below shall be reversed on the ground of the illegality of the violation of law which affected the judgment, on the ground that the decision of the court below becomes final and conclusive on the correction of the specification of the patented invention during the period of appeal of patent infringement lawsuit, and there is a ground for retrial under Article 4

[2] Even before a final and conclusive trial decision on invalidation of a patent is rendered, the court which examines the patent infringement lawsuit may decide whether there is a ground for invalidation of the patent, and if it is obvious that the patent has a ground for invalidation as a result of the trial, the court shall not grant a claim for prohibition and compensation based on the patent as an abuse of rights unless there are special circumstances.

[1] Articles 423 and 451(1)8 of the Civil Procedure Act, Article 136 of the Patent Act / [2] Article 133 of the Patent Act, Article 2(2) of the Civil Act

[1] Supreme Court Decision 99Hu598 delivered on October 12, 2001 (Gong2001Ha, 2488)

Plaintiff (Law Firm Central, Attorneys Hong Dong-ok et al., Counsel for plaintiff-appellant)

Defendant 1 and one other (Law Firm Dan, Attorneys Park Jong-mun et al., Counsel for the defendant-appellant)

Seoul High Court Decision 98Na47520 delivered on November 15, 2000

The judgment below is reversed and the case is remanded to Seoul High Court.

1. The lower court’s factual basis as to the Plaintiff’s patent right is as follows.

A. On January 20, 1987, the Plaintiff filed a patent application (application number omitted) with respect to the invention named "the store and supply device for the vertical display", and received the patent registration by omitting the patent number on September 25, 1989 (hereinafter referred to as the "patent invention of this case").

(b) Claim Nos. 1 of this case is in the form of a new drum that is kept on the same radioactive distance from drum 1 to 6 drums and that there are no number of drums equally distributed in the original direction, and the two parts of the drums that are actually extended in the drum direction are attached to the parts connected to the body or body, each of which is attached to the drum body or body, and the two parts of the drums are attached to the parts connected to the body or body, each of which is in the direction of the drum body or body, and are in the direction of the supply of the drums and drums in the direction of the removal of the drums and drums and parts attached thereto, each of which is in the direction of the supply of the drums and 6 drums in the direction of the supply of the drums and drums in the direction of the supply of the drums and parts attached thereto.

C. The purpose and effects of the instant patent invention are as follows.

Pursuant to the provisions of Article 12(1) of the former Enforcement Decree of the former Enforcement Decree of the Act on the Protection, etc. of Small and Medium Enterprises (amended by Presidential Decree No. 18350, Dec. 21, 2011; Presidential Decree No. 20124, Jan. 2, 2011; Presidential Decree No. 20134, Jan. 2, 2011; Presidential Decree No. 20134, Jan. 2, 2011; Presidential Decree No. 20134, Jan. 2, 2012).

2. In this case, based on the above facts, the court below held that the claim 1 of the patented invention of this case is based on the prohibition of the manufacture, sale, etc. of the product manufactured by the defendant based on the above patent right and the claim for damages. Since the claim 1 of this case can only be applied to a single room or other fibers separated from radiation so as to be worn off and accumulated over a long time so as to solve the problem of disturbance during the actual supply, the "blick Zone (16) which is the end of the claim 1 of this case can only be applied to the main surface (24) located near the actual withdrawal of the claim 1 of this case, and it can only be applied to the main surface (19) which is no longer than the main surface of the patent claim 1 of this case, because the plaintiff's act of which the plaintiff can be seen as being in violation of the provisions of the Patent Act 1 of this case, and it can not be applied to the main body of the patent claim 1 of this case to the actual removal (11).

3. However, we cannot agree with the above determination by the court below for the following reasons.

According to the case No. 2002Da2405 submitted by the plaintiff's attorney on June 29, 2004, a copy of the trial decision and records, which were the date of the conclusion of the original trial decision, the "actual withdrawal" in Paragraph 1 of the specification of the patent invention of this case by the plaintiff's request for a correction trial on June 29, 2004 shall be deemed to be the drum (2) and the drum (23), the actual withdrawal shall be continued in the direction of the original owner in the drum (2) and the drum (16). The correction of the specification of the patent application of this case shall not be deemed to be a final and conclusive correction of the specification of the patent application of this case by the plaintiff's request for a correction trial, and the correction of the specification of the patent application of this case shall not be deemed to have been made retroactively until the trial decision of this case becomes final and conclusive.

Therefore, the judgment of the court below is reasonable to reverse the judgment of the court below on the ground that the administrative disposition, which was the basis of the judgment of the court below, was changed by the post-administrative disposition, and there is a ground for retrial under Article 451 subparagraph 8 of the Civil Procedure Act, and in this case,

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)