(b) Where a registered patent right has any grounds for invalidation before filing an application, whether a trial decision on invalidation has been made and whether a petition for invalidation has been filed;

A patent shall be granted to a new invention, and the level of technology at the time of the application shall be considered in determining the scope of the patent right. If the whole of the registered patented invention was publicly known at the time of the application, the part of the registered patented invention shall be distinguished from the publicly known invention if there is no reasonable ground to recognize the scope of the patent right. In this case, the above theory shall also be applied to the design registration regardless of whether there is an invalid trial decision.

Articles 5, 35, and 49 of the Design Act

Supreme Court Decision 81Hu50 Decided July 26, 1983 (Norclature decision)

Attorney Choi Young-do et al., Counsel for the defendant-appellant

Gyeongsan Co., Ltd.

Seoul High Court Order 86Ra103 dated December 5, 1986

The reappeal is dismissed.

The grounds of reappeal are examined.

With respect to No. 1:

According to the reasoning of the order of the court below, if the applicant's design and the respondent manufacture and sell the registered design of this case compared to the representative (Ga) of the case, the dominant characteristics of (Ga) the Respondent's (Ga) are similar to each other, and the Speaker of the Respondent's (Ga) constitutes a device within the scope of the right of the registered design of this case. Meanwhile, the above registered design is already publicly notified by the European Patent Gazette distributed before the application and its newness and creativity are invalidated due to the lack of creativity, the court below determined that the design of this case was publicly announced by the European Patent Gazette as stated in its holding on January 6, 1982, which was the date before the application for the registration of the registered design of this case, and recognized that the summary of the design of the design of this case is identical to the decision of the court below, and in comparison with the cited design of the above European Patent Gazette, the above two Speakers can easily be seen to have been identical to the design of this case's registered design of this case, the whole shape of which belongs to the design of this case's invalidation adjudication.

Although the court below stated that the plaintiff's registered design of this case is invalid as above, the purport of the court below's decision is that since the registered design of this case is invalid as the reason of its decision, it can be easily understood that the decision of the court below is invalid because it is not necessary to wait for the invalidation decision of the request for invalidation trial of the case which is pending separately.

The theory of the lawsuit is consistent with the Supreme Court's ruling that even if a registered design right has a reason for invalidation such as the public notice prior to the filing of the lawsuit, the invalidation cannot be asserted in the lawsuit unless the decision on invalidation becomes final and conclusive. The court below asserted that the parties to the lawsuit did not immediately make a decision contrary thereto and explained the content of the judgment.

The same is the theory that even if there are grounds for invalidation such as patent, utility model, design, etc. which are all registered in the judgment of party members cited by the theory of public health, utility model, public notice prior to the filing of the application, etc., the invalidation of the registration cannot be asserted in the lawsuit until the adjudication on invalidation becomes final and conclusive by the relevant law.

However, in the Supreme Court en banc Decision 81Hu56 Decided July 26, 1983 and the Supreme Court Decision 81Hu56 regarding the confirmation of the scope of right, a patent right shall be granted to a new invention, and the level of technology at the time of the application shall be considered in determining the scope of right. Thus, if the whole of the registered patented invention is an open art at the time of the application, a part of the registered patented invention shall not be distinguished from that of the open art art art at the time of the application, and it shall return to the absence of reasonable grounds for recognizing the scope of right. Therefore, in this case, it is clear that all the Supreme Court Decision 81Da1599 Decided August 26, 1983 that the right shall not be recognized regardless of whether the registered art art art art art art art is the open art art

Therefore, the judgment of the court below is justified in accordance with the opinion of the changed party members, and the argument is eventually without merit since the court below's decision is a tree based on the precedents of the abolished party members.

With respect to the second ground:

In theory, the court below's decision that there was an error of violating the interpretation of Article 56-2 of the Design Act and Article 155 of the Patent Act, but this cannot be a legitimate ground for re-appeal under each subparagraph of Article 11 (1) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings, which is applicable mutatis mutandis under Article 13 of the Act on Special Cases Concerning

With respect to the third point:

According to the reasoning of the order of the court below, the court below determined that the European Patent Gazette (No. 1) in its ruling contains a description about the shape, shape, manufacturing method, use, materials, etc. of the goods along with the cited design, and that the contents of the quoted design can be sufficiently known. In comparison with the registered design of this case and the cited design of this case, two chairpersons consider that the shape of the water room differs from that of the length of the length of the length of the square, and that there is no difference in the shape of other shapes, and thus, there is no difference in the overall shape and shape, and thus, there is no difference in the other shapes, and thus, the registered design of this case constitutes a device that can be easily created by a person with ordinary knowledge in the field to which the chairperson belongs, by facilitating a little commercial transformation into the cited design.

The above judgment of the court below is erroneous in interpreting the law as to the Speaker including Article 4 of the Design Act, and it does not constitute a legitimate ground for reappeal under the above special law, and it cannot be viewed that the above judgment of the court below is contrary to the precedents of the party members cited by the theory of lawsuit. The arguments are groundless.

Therefore, the reappeal of this case is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Man-hee (Presiding Justice)