[1] The case holding that the mere fact that an individual pharmacological was publicly announced on the active ingredients of an invention for the use of medicine, which is the invention for the use of medicine, cannot be deemed to have clearly clarified the pharmacological mechanism arising from the concurrent use of the invention for the use of the patent, prior to the priority date of the invention for the application

[2] The case where a subsequent submission of medicinal data on pharmacological effects is allowed in the patent application for the invention for the use of medicine

[3] The scope of deliberation of litigation seeking cancellation of adjudication

[1] The case holding that the mere fact that an individual pharmacological was publicly announced on the active ingredients of an invention for the use of medicine, which is the invention for the use of medicine, cannot be seen as clearly stating the pharmacological mechanism due to the concurrent use of the invention for the use of the invention prior to the priority date of the invention for the application

[2] A case where submission of a written opinion, etc. on the subsequent effect in a patent application for an invention for use of medicine is allowed is not clearly stated in the specification, but the effect can be inferred from the description on the purpose and composition of the invention. The first specification explicitly states the pharmacological effect of the invention. However, where the pharmacological effect of the invention for use is not clearly revealed in the first specification, and it is required to enter the pharmaceutical effect of the invention for use of medicine into a test containing pharmacological data, etc. or to specify it to the extent that it can be substituted therefor, a subsequent submission of quantitative pharmacological data on pharmacological effect is not allowed.

[3] Even if the Korean Intellectual Property Office was not determined by a trial decision at the stage of litigation seeking revocation of a trial decision rejecting a petition for rejection of a trial decision, it may assert and prove the grounds for legitimate conclusion of a trial decision, unless the grounds for the decision of rejection and other new grounds for rejection are applicable. The court of litigation seeking revocation of a trial decision may deliberate and determine such grounds and serve as the basis

[1] Article 42(3) of the Patent Act / [2] Articles 42(3) and 47(4) of the Patent Act / [3] Articles 132-3 and 186 of the Patent Act

C. C. H. and C. C.C. and 1 other (Attorney Gyeong-hee et al., Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

March 18, 2005

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on June 30, 2004 on the case No. 2003 Won1110 shall be revoked.

1. Details of the instant trial decision

A. On February 29, 200 (the priority date of an international patent application, August 11, 1998) the Plaintiff filed a patent application for the invention of this case under the attached Table 1, which is named as "Clodddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddhddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd,",".

B. The patent application invention of this case is characterized by the fact that the use of amlodipine and amlodipine together, which are publicly known materials prior to the first day of using amlodipine and amlodipine together with amlodipine together with amlodipine with amlodipine with amlodipine with amlodipine with amlodipine with amlodipine with amlodipine with amlodipine with amlodipine with amlodipine with amlodipine or with amlodipine with amlodipine with amlodipine with amlodipine with amlodipine with amlodipine with a high influence or with amlodipine with amlodipum with a high influence. The patent application invention of this case was an invention for the use of medicine, and the patent application of this case did not meet the requirements of the patent application of this case, and did not clearly dismiss the plaintiff's claim.

【Evidence: No dispute between the Parties】

2. Determination on the legitimacy of the instant trial decision

A. Whether there is any omission in the detailed description of the patent application invention of this case

(1) The plaintiff's assertion

(A) The application invention of this case is effective in heart diseases such as high blood pressure, sulpha, sulpha, sulpha and pulatha, through the pharmacological mechanism called calcium blocking the calcium channel, and it should be deemed that alathathathathathathathy diseases such as HMG-Cathathathatha, through the pharmacological mechanism called calcium preventing calcium channels, and that alathathathathathathathy diseases such as HG-Crothathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathathatha.

(B) On July 2, 2002, the Plaintiff submitted quantitative pharmacological data on the increased pharmacological effect of the invention in the instant application. As to the invention in the instant application, if a person having ordinary knowledge in the technical field can see the effects of the invention from the content of the specification as stated in the specification, such medicinal data should be allowed to be submitted later. Moreover, the first specification of the invention in the instant application contains specific descriptions of the disease that can be treated as the patent invention in the instant application invention, the method of testing the pharmacological effect, the method of manufacturing amloddipine and amlodipine, the individual dosage of the patent application invention in the instant case, and the dosage method and the method of manufacturing amlodipine and amlodipine, the individual dosage of the patent application invention in the instant case, to the extent that it can substitute quantitative pharmacological data on the pharmacological effect.

(2) Determination:

(A) Whether the notice prior to the pharmacological was given

The fact that amlodipine, which is the active component of the patent application invention compound of this case, has an effect on the heart disease such as high blood pressure, sulpha, sulpha, sulpha and pule heart, through the pharmacological mechanism called calcium blocking the calcium channel. The fact that where amlodipine, which is the active component of the patent application invention compound of this case, uses together with amlodipine, is effective in the treatment and prevention of cardiopulmonary diseases such as HM-CroAcula, through the pharmacological mechanism, which is another active component of the patent application invention of this case, and that there is no dispute between the parties prior to the priority date of each patent application of this case.

However, even if the individual pharmacological of amlodipine and amlodipine, which is the active component of the patent application invention compound of this case, have been publicly announced, it cannot be seen that if they are used concurrently, they have any interaction by causing any chemical reaction (the overall purport of pleadings). Thus, if amlodipine and amlodipine are used concurrently, it cannot be readily concluded that there has occurred a pharmacological equivalent to their individual pharmacological prior to the use of amlodipine. Moreover, as seen above, it is difficult to readily conclude that the first day of the patent application invention of this case was publicly announced prior to the priority day of the invention of this case, not the pharmacological prior to the use of the calcium channel as a superior concept, but the calcium blocking program and HMG-COAzine’s individual pharmacologicaloooooooooooooooooooide’s use of amlodipine and the pharmaceutical compound of this case’s use of amlodipine prior to the use of the claim of this case.

(B) Whether to allow the subsequent submission of medicinal data and whether there is a specific indication about the pharmacological effect to the extent that it can substitute the quantitative pharmacological data

In cases where submission of a written opinion, etc. on the subsequent effect is allowed, the effect of the invention is not clearly stated in the specification, but can be inferred from the description on its purpose and composition. The summary effect of the invention in this case, such as the invention in this case, is explicitly stated in the initial specification, and the pharmacological effect of the invention in this case is not clearly revealed, but where it is required to enter the pharmacological effect into the test that includes pharmacological data, etc. or to enter it in detail to the extent that it can substitute it, the submission of quantitative pharmacological data on pharmacological effect is not allowed (see Supreme Court Decision 201Hu65, Nov. 30, 2001). On other premise, the plaintiff's assertion that the subsequent submission of pharmacological data should be allowed in the pharmaceutical invention in this case, which becomes an issue of whether the pharmacological effect is publicly known or not, is without merit.

On the other hand, the initial specification of the invention in the patent application of this case contains each of the methods of manufacturing amlodipine and amlodipine, which is the active component of the patent application invention compound of this case, the medicinal use of the patent application invention of this case, the method of measuring the usefulness or pharmacological effect of the patent application of this case, the individual dosage of amlodip and amlodipine, which is the active component of the patent application of this case, and the method of administration of the patent application invention of this case, and the method of manufacturing amlodipine, which is the active component of the patent application of this case. However, there is no indication of the result of analysis of the patent application of this case by experimental or clinical administration of the patent invention of this case (Evidence 1 of this case). The detailed description of the patent application of this case does not include any specific description to the extent that it can substitute amlodip data on the pharmacological effect of the patent application of this case.

(3) Sub-decisions

Therefore, it cannot be deemed that the pharmacological effect in the specification was clearly indicated prior to the priority date of the invention in the patent application of this case, and since the detailed description of the invention does not include a specific description to the extent that it can replace quantitative pharmacological data with respect to the pharmacological effect, the invention in this case did not meet the requirement that the patent application of this case must state the effect to the extent that a person with ordinary knowledge in the art to which the invention pertains can easily execute the invention. Accordingly, the trial decision of this case, as such, is legitimate.

B. Whether the patent application invention of this case is non-obviousness

(1) The parties' assertion

With respect to the Defendant’s assertion that the invention of this case could not easily be claimed from the cited inventions, the Plaintiff did not make a decision with the Korean Intellectual Property Tribunal as to whether the invention of this case is non-obviousness, and the Defendant’s assertion of the grounds for rejection not determined in the Korean Intellectual Property Tribunal as the grounds for supporting the legality of the trial decision of this case is deprived of the Plaintiff’s interests of the Plaintiff, which is the applicant, and thus, the lack of inventive step should be excluded from the subject of a trial in the lawsuit seeking cancellation of the trial decision of this case. In comparison between the invention of this case and the cited invention of this case, even if comparing the invention of this case with the cited invention of this case, the invention of this case has only been described as to the medical use of amlodipine and amlodipine solution, and there is no offer about the cases where amlodipine and amlodipine solution are used concurrently, and the subsequent adverse effects or side effects are indicated, and the invention of this case can not easily be used from the invention of this case.

(2) Determination as to whether the assertion of lack of inventive step is subject to examination of the litigation to revoke the trial decision of this case

Even if the Korean Intellectual Property Office is not determined by the trial decision at the stage of litigation for revocation of the trial decision rejecting a request for a trial for lack of inventive step, the grounds for legitimate conclusion of the trial decision may be asserted and presented, unless the grounds for the decision of rejection and other new grounds for rejection are determined by the trial decision, and the court of litigation for revocation of the trial decision may deliberate and determine it without limitation and use it as the basis for the judgment (see, e.g., Supreme Court Decision 2001Hu1617, Feb. 26, 2003) unless there are special circumstances to see otherwise (see, e.g., Supreme Court Decision 2001Hu1617, Feb. 26, 2003). Therefore,

(3) Determination as to whether the patent application invention of this case is non-obviousness

The characteristic of the invention in this case is as seen above that the invention in this case was found to have increased effect in treating clusium scam and the composite symptoms of high blood pressure and informed blood transfusion or in controlling cardio-risk symptoms in the event that the invention in this case uses clusium clusium and HMG-CA restoration effectively, which is a calcium channel blocking calcium channel. The invention in this case, which is the main claim of the invention in this case, is a pharmaceutical product including clusium or dilution in clusium, which is the active substance of the invention in this case, to make the pharmaceutical product including calcium or dilution agents, is widely known technology in the technical field of this case; the combination of HMG-CoAcamination agents, which is a calcium clusium clusium clusium 1 and clusium clusium clusium clusium 1 in comparison with the invention in this case.

First of all, the instant Claim 1 invention and the cited invention are identical in that the instant invention are using calcium solution. However, there is a difference between whether the instant calcium is using calcium solution as HMG-CA’s restoration effective system. However, if calcium and calcium are using calcium solution, the substance publicly known prior to the priority date of the instant patent application is not a dispute between the parties, and if the instant invention contains no adverse effect on the use of calcium block program and HMG-CA’s restoration effective control system, not the instant invention. However, the instant Claim 1 provides that the instant calcium solution and HG-CA’s expansion in use of calcium solution would have the same effect as that of the instant patent application process, and it would have an adverse effect on the use of calcium invention, not the instant patent application process, and it would have the same effect as that of the instant calcium invention, in conclusion, to the extent that the calcine invention is to be returned to cal.

Furthermore, with respect to the medicinal use and pharmacological effect, the cited invention shows that the use of the HMG-CoA’s refaccine and the calium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium sium s. In addition, the comparable invention s. 1 invention s., which is the medicinal use use of the invention of this case, is similar to the combination with the invention of this case sium 1 invention sium sium s.

(4) The theory of lawsuit

Therefore, the Claim No. 1 invention of this case cannot be easily described from the cited inventions, and the subject matter of the lawsuit seeking revocation of the trial decision on the trial on the grounds of rejection is not each claim but all claims. Thus, if there are grounds for rejection in any one of claims, the patent application shall be rejected in entirety. Thus, the trial decision of this case is legitimate in this regard without further examining whether the rest of claims in the patent application of this case is non-obviousness or not.

3. Conclusion

The plaintiff's claim shall be dismissed as it appears to be any mother or there is no reason to do so, and it is so decided as per Disposition.

Judges Lee Sung-ho (Presiding Judge)