[1] Criteria to determine the scope of rights of a registered utility model

[2] The case holding that a registered device falls under the scope of the right of the registered device, since the device added and improved including both the core description of the registered device does not reach the degree to be evaluated as a new device

[1] In order to determine which device falls under the scope of the right on the registered device, the scope of the right should be first determined on the basis of the scope of the claim for registration of the registered device. In determining this, the publicly known public technology should be excluded from the scope of the right unless it is closely combined with new technology.

[2] The case holding that (a) a device falls within the scope of the right of a registered device on the ground that (a) a device contains both the core professional engineers in the registered device and has several different effects; (b) a device is ultimately added and improved using the registered device, but it cannot be deemed a new device to the extent that it goes beyond the registered device's professional engineer and is deemed to have a more effective effect than the registered device, on the ground that it is not a new device.

[1] Articles 29 and 35 of the Utility Model Act, Articles 97 and 135 of the Patent Act / [2] Articles 4(2), 29, and 35 of the Utility Model Act, Articles 97 and 135 of the Patent Act;

[1] [2] Supreme Court Decision 96Hu887 delivered on November 26, 1996 (1) / [1] Supreme Court Decision 86Hu99 delivered on September 8, 1987 (Gong1987, 1572), Supreme Court Decision 89Hu2120 delivered on August 28, 1990 (Gong190, 2028), Supreme Court Decision 89Hu1851 delivered on September 28, 1990 (Gong190, 2165), Supreme Court Decision 94Hu1176 delivered on February 23, 1996 (Gong1155)

New Golf Co., Ltd. (Patent Attorney Cho Chang-hee, Counsel for the defendant-appellant)

Appellant (Attorney Lee Im-soo, Counsel for defendant-appellant)

Korean Intellectual Property Office Decision 94DaDa321 dated April 30, 1996

The decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office.

The grounds of appeal are examined.

(1) According to the reasoning of the lower judgment, the lower court determined whether the instant device falls under the scope of the right of the instant registered device [the instant device(a) of May 24, 1994: hereinafter referred to as a golf bags; hereinafter referred to as a registered device], and determined that the instant device falls under the scope of the instant device(s) different from the instant device(s). The two devices are hringe in which it is possible to turn off a bridge between golf bags and its development location, and the two devices are set up in the upper part of the bridge, and the two devices are more likely to fall under the scope of the registered device(s) of the instant device(s) and the front part(s) connected to the instant structure(s) at the intervals of the instant building(s) and the front part(s) connected to the instant golf bridge(s) at the intervals of the lower part(s). However, there is no difference between the registered device(s) and the front part(s) 19.15) of the MA, which would be different from the registered device(s).15).

(2) However, in order to determine which device falls under the scope of the right of a registered device, the scope of the right should be first determined on the basis of the scope of the claim for registration of the registered device. In determining this, the publicly known technology should be excluded from the scope of the right unless it is closely combined with a new technology (see Supreme Court Decision 94Hu1176 delivered on February 23, 1996).

According to the records, the claim scope in the registration height is fixed to the lower end of the golf tamping, which is possible to use the above golf tamping at the lower end. On the other hand, the above bridge is set up to the upper part of the above bridge so that it can be operated with hard location, and the above bridge is set up at the lower end of the golf tamping point, and it is hard to see the above golf twelved with the lower end of the golf twelves that are fixed to the lower end of the golf twelves, and it is hard to see the above golf twelved with the lower end of the above golf twelves that are installed at the lower end of the above golf twelves, and it is hard to see the lower part of the golf twelves that are installed at the lower end of the above golf twelves and glved with the lower part of the above golf twelves.

In comparison with the (Ga) device in light of the scope of the above right in the registered device, the (Ga) device includes both the core projected parts of the professional engineer shop in the registered device, and is connected to the hon branch through the hon branch as determined by the court below, and thus, the hon board's hon board is controlled by the hon branch as determined by the court below, the middle physical difference in golf whites, and the degree of pressure at the hon place. Accordingly, the (Ga) device is added and improved by using the registered device. However, it cannot be said that it is a new device beyond the professional engineer in the registered device, to the extent that it is recognized that the registered device has a more effective effect than the registered device, and it falls under the scope of the right in the registered device.

Nevertheless, the court below did not properly grasp the scope of the right of the registered device and determined that it does not fall under the scope of the right of the registered device, but does not fall under the scope of the registered device. The court below erred in the misapprehension of legal principles as to the determination of the scope of the right of the device, or by failing to exhaust all deliberations, which affected the decision of the court below. The ground for appeal pointing this out is with merit.

(3) Therefore, the decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)