[1] The case holding that the argument regarding the selection of evidence cannot be a legitimate ground of appeal, and that the newly submitted evidence does not supplement the specification of the patented invention

[2] In a case where a patent invalidation trial is pending in the court of final appeal and does not affect the fact-finding on the premise of determining the existence of a ground for invalidation of a patent, whether there exists a ground for retrial under Article 451 (1) 8 of the Civil Procedure Act (negative)

[3] In a case where a trial for correction is pending in the Intellectual Property Trial and Appeal Board, whether the trial for revocation of a patent invalidation trial should be suspended (negative)

[1] Article 42(3) of the Patent Act / [2] Article 136 of the Patent Act, Article 451(1)8 of the Civil Procedure Act / [3] Articles 133 and 136 of the Patent Act

[2] Supreme Court Decision 2002Hu2839 Delivered on October 14, 2004

Senior Public Service (Patent Attorney Byung-il, Counsel for the defendant-appellant)

New and Civil Service Co., Ltd. (Patent Attorney Jeon Soo-soo et al., Counsel for the defendant-appellant)

Patent Court Decision 2006Heo7535 Decided July 19, 2007

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

The First Ground for Appeal

The argument in the ground of appeal No. 1 is without merit, and it is not acceptable to the purport of interfering with the selection of evidence belonging to the court below's exclusive right as a fact-finding court. In light of the records, the decision on invalidation of the patented invention of this case (No. 299719) is binding on the decision of revocation of the trial. The patented invention of this case is distinct from the previous technology, while the patented invention of this case is distinct from the previous technology in the light of the function of preventing water leakage of light walls and dives formed corresponding thereto in the specification, it is not sufficient to explain the whole structure of water leakage prevention between fluids and presses, and there is no clear explanation or city as to how water leakage prevention activities are carried out, and it is not sufficient to explain about the whole structure of water leakage prevention between fluids and presss, and it is not sufficient to supplement the plaintiff's ground of appeal No. 1 and No. 44 of this case's new ground of appeal No. 1, 2007.

The Second Ground of Appeal

Where a trial on invalidation of a patent has become final and conclusive while the trial on correction of the patent was pending in the court of final appeal, the patented invention becomes a patent application in accordance with the specification after correction and the establishment of the patent right is registered, and thus, there may be grounds for retrial under Article 451(1)8 of the Civil Procedure Act in the judgment of the court below which judged whether the patented invention was invalidated prior to correction (see Supreme Court Decision 9Hu598 delivered on October 12, 2001). However, even if the trial on invalidation of a patent is pending in the court of final appeal and the specifications of the patented invention are corrected after the correction of the patented invention became final and conclusive, the above grounds for retrial cannot be said to exist unless there are grounds for retrial, which affect the fact-finding under the premise of determining the existence of grounds for invalidation of the patent (see Supreme Court Decision 2002Hu2839 delivered on October 14, 2004)

Examining the aforementioned legal principles and the purport of the instant invalidation trial decision, even if the specification of the instant patent invention was partially corrected as alleged in the grounds of appeal No. 2, it does not change the conclusion as to the propriety of the invalidation trial decision of the instant case, which judged that all claims of the instant patent invention were invalid, as seen earlier, and therefore, there is no influence on the conclusion of the lower court that the instant trial decision was justifiable, and there is no need to suspend the review of the revocation trial on the patent invalidation trial of the relevant patent invention pending in the appellate court on the ground that the same patent invention is pending in the Intellectual Property Tribunal, and thus, it does not need to suspend the trial on the revocation trial on the patent invalidation trial of the patent invention.

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

Justices Park Ill-sook (Presiding Justice)