Whether the scope of right to a patented invention falls under the scope of right to a patented invention where the (A) invention is made only by publicly known technology (negative)

In order to determine whether an invention falls under the scope of a patent right of a patented invention, the scope of the patent right of the patented invention should be determined on the basis of the scope of the patent right of the patented invention. However, the publicly known prior art should be excluded from the scope of the right unless it is closely combined with a new technology. Thus, the subject of determination in determining whether an invention is identical or similar to a patented invention is an invention is limited to the remaining part of the invention except for the part in which the publicly known invention is included. Therefore, if a (Ga) invention compared to a patented invention is made only with an publicly known art, it is not the subject of determination as to whether it is identical or similar to a patented invention.

Articles 57 (see current Article 97) and 97(1)2 (see current Article 135(1)) of the former Patent Act (Amended by Act No. 4207, Jan. 13, 1990);

Supreme Court Decision 91Hu1649 delivered on February 25, 1992 (Gong1992, 1175) Supreme Court Decision 95Hu1777 delivered on November 26, 1996 (Gong1997Sang, 90) Supreme Court Decision 96Hu870 delivered on November 26, 1996 (Gong1997Sang, 93) Decided July 22, 1997 (Gong197Ha, 2525)

Seoul Joint Deposit Co., Ltd. (Patent Attorney Kim Yong-il et al., Counsel for the defendant-appellant)

Appellant (Patent Attorney Kim Jong-sik, Counsel for defendant-appellant)

Korean Intellectual Property Trial Office Decision 95Na356 dated September 30, 1996

The appeal shall be dismissed. The costs of appeal shall be assessed against the respondent.

The grounds of appeal are also examined.

In order to determine whether a certain invention falls under the scope of a patent right of a patented invention, the scope of the patent right of the patented invention should be determined first. However, the publicly known technology should be excluded from the scope of the right unless it is closely combined with a new technology. Thus, the subject of determination in determining whether a patent invention and a (Ga) invention compared thereto are identical or similar inventions is limited to the remaining part except the publicly known part among both inventions (see Supreme Court Decisions 91Hu1649 delivered on February 25, 1992; 95Hu177 delivered on November 26, 196, etc.). Accordingly, if a (Ga) invention compared to a patented invention is made only with the publicly known technology, it does not fall under the scope of the patent right of the patented invention, regardless of the scope of the patent right of the patented invention and whether it is similar to the patented invention.

The court below determined that (A) inventions are identical to inventions published on June 24, 1986, which are identical to those published on June 24, 1986 by the claimant with the purpose, technical composition, and effect of (a) inventions in comparison with those of the quoted inventions, and (a) inventions are identical to those of the quoted inventions published on December 3, 1981 (registration No. 4606, Oct. 14, 1987) of the patented invention (registration No. 4606, Dec. 3, 1981) of the Patent Gazette, which were published on June 24, 1986, and were not subject to the scope of the right to the patented invention of this case without any need for comparison with the patented invention of this case.

In light of the records and the above legal principles, the above recognition and judgment of the court below are deemed justifiable, and there is no error in the misapprehension of legal principles as to the confirmation of the scope of rights, or incomplete hearing or omission of judgment, as otherwise alleged in the ground of appeal.

Therefore, the appeal is dismissed as it is without merit, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Seo Sung-sung (Presiding Justice)