[1] In a case where the invention expressed only the scope of the elements in numerical value is different only from the invention publicly known before the application or the numerical value of the invention, the standard for determining the originality of the invention

[2] In a case where an examiner of the Korean Intellectual Property Office rendered a decision of rejection on the ground that the patent application for a patent application with a name "scaping flag and transparency studios" was denied by the comparable invention, the case holding that the court below erred by misapprehending the legal principles as to the determination of the newness of the numerical limitation invention in the judgment below, although the patent application invention is not denied by the comparable invention, although the patent application invention is not denied

[1] In a case where there is a difference only between the invention described within the limit of the numerical value and the publicly known invention prior to the filing of the application, if the limitation of the numerical value is specifically initiated in the invention, or if the limitation of the numerical value is merely known and used as well as new effects do not occur, it shall be denied if the person with ordinary knowledge in the art to which the invention pertains (hereinafter “ordinary technician”) can properly choose the limitation of the numerical value, and even if the limitation of the numerical value is not so known, if the limitation of the numerical value is specifically initiated in the invention, it shall be denied. And the limitation of the numerical value of the invention is specifically initiated in the art to which the invention pertains. Further, the limitation of the numerical value of the invention is not clearly known or it shall not be deemed that the numerical value of the invention can be clearly known from the prior literature based on the technical formula at the time of the filing of the application. Meanwhile, the numerical value limitation of the invention can be seen as having a different effect from the publicly known invention as a technical instrument at the time of the filing of the prior literature.

[2] In a case where an examiner of the Korean Intellectual Property Office rendered a decision of rejection on the ground that the patent application of a patent application with a name “spling other flag and transparent splouts” is denied by the cited invention, the case holding that the patent application paragraph (1) of the invention contains no errors in the misapprehension of the legal principle as to the invention of the patented invention since the content of the 3rd source cargo expressed only within the numerical limit of “0.01 to 0.2%” and the content of the 3rd source cargo is limited to the invention with a word “20% or less” and its content is different only within the numerical limit of the 3rd source cargo content, on the ground that the above numerical limitation of the patent application invention has the significance as a technical means to achieve a task different from the numerical limitation in the comparable invention, and its effect is low, but it also becomes excellent in the transparent spling flag, and thus, it cannot be seen that it is not a new and non-specific method of the cited invention, and thus, it cannot be viewed that it is an ordinarily identical with the numerical range.

[1] Article 29(1) and (2) of the Patent Act / [2] Article 29(1) and (2) of the Patent Act

[1] Supreme Court Decision 2008Hu4998 decided August 19, 2010 (Gong2010Ha, 1842)

Lee Jae-su and Tasan (Law Firm Il Patent, Patent Attorney Kim Jong-ri et al., Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

Patent Court Decision 2010Heo5093 decided July 8, 2011

The judgment below is reversed, and the case is remanded to the Patent Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. In a case where there is a difference only between the scope of elements and the amount of numerical definition or between the invention publicly known prior to the filing of the application, such difference shall be denied if the limited numerical range is specifically commenced in the invention publicly known, or even if it is not so, if a person with ordinary knowledge in the art to which the invention pertains (hereinafter “ordinary technician”) can properly select it, and if there is no new effect, it is known that the limited numerical range has been commenced specifically in the invention, and if the limited numerical range has been publicly known, it shall not be deemed new. In addition, it shall be deemed that the limited numerical range can not be seen that there is a significant difference between the publicly known numerical range and the publicly known invention as well as the publicly known and used numerical range. In addition, it shall be deemed that there is no reasonable difference between the publicly known numerical range and the publicly known invention as a technical means to achieve the task and the publicly known technological formula at the time of the filing of the application.

2. We examine the above legal principles and records.

According to the reasoning of the judgment below, the claim No. 1 (amended on January 30, 2009; hereinafter referred to as " Claim No. 1 invention of this case") of the patent application invention of this case (patent application number omitted) with the name "sphering spingling sping spinginging and transparent spingingle" is an invention that expresses the content of the third source cargo of the third source cargo with the original sping sping sping sping sping sping sping sping sping sping sping sping sping sping sping sping sping sping sping sping sping sp

However, the specification of the instant Claim 1 is that “the content of the instant Claim 1 is less than 0 per cent of the size of the 3rd in comparison with that of the No. 197-71860 term Japanese Patent Gazette (referring to the Japanese Patent Gazette in which the invention is non-subject to comparison), but it is difficult to reduce the rate of the fluorial resistance of other flag, but it is not adequate to use this fluorial characteristics for the transparent fluor. This invention aims to ensure that the fluorial fluor rate of the fluor itself is low, and that the fluoral fluor is excellent in the transparent fluorial fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s fluor’s f.

Ultimately, in the instant Claim No. 1 invention, the numerical limitation on the content of the third source cargo in the instant Claim No. 1 has the significance as a technical means to achieve a different task from that of the comparable invention, and furthermore, the effects therefrom are also low to lower the rate of the lower resistance of the spuging other flag, but are also excellent, so it is distinguishable from that of the comparable invention. As such, the numerical limitation cannot be said to have been specifically commenced in the comparable invention, and it cannot be deemed that the numerical limitation is merely a widely known and tolerance that can be properly selected by ordinary technicians. Accordingly, the instant Claim No. 1 invention is not denied by the comparable invention.

Nevertheless, the lower court determined that the scope of elements of the instant Claim No. 1 is merely limited to the numerical value of the cited invention. In so doing, it is not recognized that the complexity of composition is not recognized, and it is not recognized that the qualitative effect or clinical intent is based on the numerical limitation, and thus, newness is denied due to the substantially identical invention and technology composition. In so doing, the lower court erred by misapprehending the legal doctrine on the determination of newness of numerical limitation inventions, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal pointing this out

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Shin (Presiding Justice)