Whether a trial decision of reversal and return against a rejection ruling which cannot be registered in the design register is valid against a trial decision of res judicata (negative)

Article 147 of the former Patent Act (amended by Act No. 4208 of Jan. 13, 1990) which is applicable mutatis mutandis under Article 56 of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990) provides that "where a trial or an appeal under this Act has become final and registered or a judgment has become final and conclusive, a final and conclusive," it is recognized only as a final and conclusive trial or a judgment, etc. on the invalidation or confirmation of the scope of the right of the design registration, which is a registered matter on the original design register, and it is not recognized as a final and conclusive trial or a judgment on the reversal or transmission of a trial case on a rejection ruling which cannot be registered on the original design register.

Article 56 of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990); Articles 147 and 135 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 2 others, Counsel for plaintiff-appellant) and 1 other (Law No. 410, Nov. 27, 1990, Counsel for plaintiff-appellant)

Patent Attorney Kim Yong-soo, Counsel for the defendant-appellant

Attorney Park Sung-chul et al., Counsel for the defendant-appellant

Korean Intellectual Property Office Decision 90 No. 376 dated October 31, 1991

The appeal is dismissed.

The costs of appeal shall be borne by the respondent.

We examine the grounds of appeal.

1. On the first ground for appeal:

Where a trial decision on an appeal is reversed in a trial of rejection or appeal, a trial of appeal on circumstances may be conducted in the trial of appeal, and a trial of appeal on a trial decision may be conducted in the trial of appeal, and in this case, the grounds which form the basis for reversal in the trial decision shall be as claimed by the examiner or the administrative patent judge.

However, Article 147 of the former Patent Act (amended by Act No. 350, Jan. 13, 1990) which is applicable mutatis mutandis under Article 56 of the former Design Act (amended by Act No. 1990, Jan. 13, 199) provides that "When a trial decision or a trial decision on appeal under this Act has become final and conclusive and registered or a judgment has become final and conclusive, it shall be limited to only a final and conclusive trial decision or a judgment on confirmation of the scope of the right of the design registration, which is a registered matter on the original design register, and a trial decision on reversal and return of a trial case against a rejection ruling which cannot be registered on the original design register, shall not be deemed to have the effect of the prohibition against double Jeopardy (see Supreme Court Decision 85Hu12, Sept. 9, 1986).

2. On the second ground for appeal:

According to the original decision, the court below's decision is acceptable in light of the records that the court below judged that when considering the overall observation of both the Speaker and the quotation as shown in its decision, it is similar to each other in the heart, and there is no error of law as pointed out. The argument is without merit.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-sung (Presiding Justice)