(a) Whether it is possible to immediately revoke a ruling of rejection rendered by the Korean Intellectual Property Office as an administrative litigation and to seek the confirmation of invalidity thereof;

(b) Where an appeal against an adjudication dismissing a request for administrative appeal may be filed;

C. Whether the court of final appeal allow correction or modification of the purport of the claim

D. Whether the facts alleged only in the final appeal can be a legitimate ground for final appeal

A. As to the illegality in the examination procedure leading to the rejection ruling or rejection ruling by the Korean Intellectual Property Office as to the application for a utility model, the revocation or invalidation confirmation cannot be sought from the High Court by an administrative litigation without complying with the provisions of the Utility Model Act and the Patent Act.

(b) An appeal against an adjudication dismissing a request for an administrative appeal against an administrative disposition shall not be asserted for the existence of the original disposition or for the reason that it was void or void, and the adjudication itself has an error of law in the subject, procedure, form, or content.

C. No correction or amendment of the purport of the claim in the final appeal which is a legal judge is allowed.

D. The new facts asserted only in the final appeal without asserting in the lower court cannot be a legitimate ground of appeal against the lower judgment.

(a) Article 2(c) of the Administrative Litigation Act; Article 8 of the Administrative Litigation Act; Article 3(1) of the Administrative Appeals Act; Article 186(1) of the Patent Act; Article 34 and Article 35 of the Utility Model Act; Article 235 of the Civil Procedure Act; Article 393 of the Civil Procedure Act;

A. Supreme Court Order 4294Nu126 delivered on March 15, 1962 (Gong1092, 129). Supreme Court Decision 89Nu1865 delivered on October 24, 1989 (Gong1989, 1806), February 28, 1992 (Gong1992, 1188), Supreme Court Decision 89Nu7801 delivered on October 8, 1992 (Gong1991, 2730), Supreme Court Decision 91Nu4126 delivered on February 11, 1992 (Gong192, 1037), Supreme Court Decision 82Nu295 delivered on October 11, 1983 (Gong1983, 1965).

Plaintiff

The Commissioner of the Korean Intellectual Property Office and one other

Seoul High Court Decision 94Gu1403 delivered on April 26, 1994

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The plaintiff's grounds of appeal (the supplementary documents submitted after the expiration of the period are considered to the extent of supplement in case of the grounds of appeal).

1. On the first ground for appeal

According to Article 186(1) of the Patent Act, Articles 2 and 8 of the Administrative Litigation Act, and Article 3(1) of the Administrative Appeals Act, which are applicable mutatis mutandis under Articles 34 and 35 of the Utility Model Act, as to the utility model trial system, the rejection ruling of the Korean Intellectual Property Office with respect to the application for a utility model may be contested by the procedure of appeal, trial, and final appeal to the Supreme Court under the Utility Model Act and the Patent Act, regardless of whether the defect falls under a cause for revocation of an administrative act in accordance with the legal principles of the Administrative Litigation Act, or whether the defect falls under a cause for revocation of an administrative act or an inevitable invalidation. Thus, the rejection ruling of the Korean Intellectual Property Office with respect to the application for a utility model can not be asserted immediately through an administrative litigation, without complying with the provisions of the Utility Model Act and the Patent Act as to the illegality in the examination procedure leading to the above rejection ruling or its rejection ruling (see

The judgment of the court below to the same purport is just, and there is no illegality as alleged in the lawsuit, and the argument of the lawsuit that the decision whether to grant an application for extension of the period for submitting written opinions in the examination procedure is an administrative disposition subject to administrative appeal cannot be accepted. The argument is without merit.

2. On the second ground for appeal

An appeal against an adjudication dismissing a request for an administrative appeal against an administrative disposition cannot be asserted on the ground of existence or absence or invalidity of the original disposition, and it shall be limited to cases where the adjudication itself contains an error in the subject, procedure, form or content of the original disposition (see, e.g., Supreme Court Decision 89Nu1865, Oct. 24, 1989; Supreme Court Decision 91Nu6979, Feb. 28, 1992).

According to the reasoning of the judgment below, the court below rejected the plaintiff's claim on the ground that the plaintiff's claim for cancellation of the judgment in this case does not fall under the case where the judgment itself has an inherent error and there is no evidence to find that there is an inherent error in the judgment itself. In light of the records, the judgment of the court below is just and acceptable, and there is no illegality as pointed out in the theory of lawsuit, and the judgment in this case is erroneous in the method or content of the decision not to make a decision to the extent that the decision in this case is justified, and the judgment in this case has not

3. As to the amendment of the purport of the claim

The plaintiff sought the revocation of the rejection ruling and the decision disposition in this case and added the claim that the automatic approval disposition on the extension of the period for submitting the written opinion in this case is null and void. The correction or modification of the claim in the final appeal which is a legal judge is not allowed (see Supreme Court Decision 91Nu4126, Feb. 11, 1992). The new facts asserted only in the final appeal without the plaintiff's assertion at the original trial cannot be a legitimate ground for appeal against the original judgment (see Supreme Court Decision 86Nu325, Feb. 24, 1987). All arguments are without merit.

4. Therefore, the appeal is dismissed 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 on the bench.

Justices Chocheon-sung (Presiding Justice)