The case holding that since the second application for confirmation of the scope of active confirmation of the scope of a right in a petition filed for registration of an earlier application lacks part of the essential elements of the petition filed for registration of an earlier application, it cannot be deemed that the two devices are in a relationship of use, the claim for confirmation of the scope of a right in the petition filed for confirmation is unlawful

The case holding that since the second application for confirmation of the scope of active confirmation of the scope of a right in a petition filed for registration of an earlier application lacks part of the essential elements of the petition filed for registration of an earlier application, it cannot be deemed that the two devices are in use relationship, the claim for confirmation of the scope of a right in the petition filed for confirmation of the scope of right

Articles 39 (see current Article 25), and 50 (see current Article 33 of the Utility Model Act, and Article 135 of the Patent Act) of the former Utility Model Act (amended by Act No. 7872 of March 3, 2006)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant)

Park J-jin (Patent Attorney Kim Young-young, Counsel for the defendant-appellant)

Lee Sung-dae et al. (Patent Attorney Hong-chul, Counsel for the defendant-appellant)

July 26, 2006

1. The decision made by the Intellectual Property Tribunal on October 31, 2005 on the case No. 2004Da1030 shall be revoked.

2. The costs of lawsuit shall be borne by the defendants.

The same shall apply to the order.

1. Basic facts

The Defendants filed an application on April 12, 1993 and obtained a utility model registration with the registration number of No. 92369 on Nov. 29, 1995 as to the utility model right holder in the instant registered garage as indicated in attached Form 1, “Spodo Do Do Do Do Do Do Do Do”. The registered garage of this case is about Do Do Do Do 1993-144 with the previous application number of the utility model registration application in order to facilitate support, determination, or separation of Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do 144, and the direction of the opening (5,5’) of the inserted Do Do Do Do Do Gun Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do Do.

On May 18, 2004, the defendants filed a petition for an affirmative trial to confirm the scope of rights which belongs to the scope of rights in relation to the registered device and the use of the attached Form 2, which the plaintiff received a utility model registration under the registration number No. 326396 on Sep. 1, 2003. The Korean Intellectual Property Tribunal rendered the decision of this case on the ground that the challenged petition contains all the elements of the registered petition of this case.

【Ground for Recognition: Facts without dispute】

2. Whether the active request to confirm the scope of the right of this case is legitimate

(a) Legal doctrine;

The active confirmation of the scope of a right that seeks to confirm that a device registered by an later application falls under the scope of a right in the earlier application based on the filing of the earlier application as the subject matter of confirmation, unless both devices are denied the validity of the earlier application as to the use relationship provided for in Article 39 of the Utility Model Act, and can seek confirmation of the scope of a right. Thus, the affirmative confirmation of the scope of a right is not allowed as a result of denying the validity of the later registered right before the confirmation of the invalidation trial on the right. Thus, the affirmative confirmation of the scope of a right between the rights-holder of a right should be dismissed as an unlawful claim with no benefit of confirmation (see Supreme Court Decision 9Hu2433, Jun. 28, 2002). Meanwhile, the use relation is added by adding new technical elements to the technical composition of the later registered device, including the summary of the later registered device, and it is established if the later registered device contains the entirety of the earlier registered device, and this is also the case where the later registered device maintains the same device as the earlier registered device within the earlier registered proposal (see Supreme Court Decision 2009Do3197.

B. Whether the petition for confirmation is in a relationship of use with the registered petition of this case

(1) The elements of the instant registered appeal

The registered complaint of this case, as shown in attached Table 1.1. paragraph 1.2, forms the force (A) and forms the inserted home (4)(4)(4)(5)(5)(5)(hereinafter referred to as the "entent 2") (hereinafter referred to as the "entent 4(4)(5)(5)(hereinafter referred to as the "entent 66)(1)(hereinafter referred to as the "entent 46(4)(5)(5)(hereinafter referred to as the "entent 2") with the outer side of the above inserted home-4(4)(5)(hereinafter referred to as the "entent 66(6)(hereinafter referred to as the "EM")(hereinafter referred to as the "EM") with the outer side being wide and narrow as 5(6)(6)(hereinafter referred to as the "EM 466)(EM”)(hereinafter referred to as the "EM 468(4)(5)(hereinafter referred to as the "EMM”).

(2) Preparation for both devices

[Reasons for Recognition: Evidence Nos. 1 through 5, Evidence Nos. 1 and 2, Rule of experience, and purport of oral argument]

(A) First of all, both devices are designed to support and set up plossys by using a simple land and to prevent them from easily escaping. The purpose and effect of both devices are substantially the same.

(B) Next, in preparation for the composition of both devices, the component 1 of the registered device of this case is composed of the two parts (1) and the original heading (2) and knobing sub-branch (3) in the composition of the confirming device. The component 2 is an incorporated unit (4) in the rectangular direction (B) in the direction that the knobity (3) in the confirming device is located. The component 3 is an open unit (5) in the original heading (4) in the direction that the knobation (6) in the original heading (1) and the knobing sub-branch (2) are located in the confirming device, and the component 5 is an identical and similar composition in the knobing part (7) in the knobing part of the confirming device (7). Therefore, there is no clear dispute between the parties concerned), 31 and 51 of the registered device in this case.

However, there is a lack of elements corresponding to the elements of the registered complaint of this case in the challenged complaint of this case.

As to this, the defendant asserts that the elements 4 are not essential elements in a selective composition, the scope of protection of the registered utility model shall be determined based on the matters set forth in the claims for utility model registration, and the claims shall be stated only on the matters which are indispensable for the composition of the device. Thus, the matters described in the claims for utility model registration shall be deemed an essential element of the device unless there are special circumstances (see, e.g., Supreme Court Decisions 98Hu2856, Jun. 1, 2001; 2004Hu1564, Jan. 12, 2006). The elements described in the registered appeal in this case shall be deemed as the elements described in the claims, and 4 elements of the registered appeal in this case shall be deemed as the composition described in the claims. In the registered appeal in this case without any composition such as the conclusion 9) of the written claim for confirmation, the outer line of a fixed line of more than two thickness shall be wide and necessary to fix a narrow side (400,4400,000).

(3) Fixed interest rate

Therefore, as long as the challenged device lacks the component elements, which are essential elements of the registered device of this case, the challenged device cannot be deemed to be in the relationship of use with the registered device of this case.

(c) Conclusion

Ultimately, the petition for a trial of this case is a positive claim between the rights-holder and must be dismissed as it has no interest in confirmation, and the decision of this case is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the revocation of the trial decision of this case is reasonable, and it is so decided as per Disposition with the assent of all participating Justices.

Judges Lee Ki-taik (Presiding Judge)