[1] Criteria for determining the inventive step of an invention

[2] The case holding that the inventive step is recognized on the ground that the patent application invention and the quoted invention are identical to the elements of the high quality plastic production materials and their contents are different, and their effects are different from each other, and their effects are different from each other

[1] The purpose of Article 29(2) of the Patent Act is to make an invention easily derived from the prior art known to the public. The degree of difficulty in the creation, which measure the existence of the inventive step, should be determined by considering the difference in the technical composition and the operating effect of the invention. In addition, if the composition of the patent application is not only different from the prior art known to the public, but also significantly improved and advanced compared to the prior art, it should be deemed that the invention can not easily be seen by a person with ordinary knowledge in the art to which the invention pertains, in light of the purpose of the patent system to promote the development of inventive step, and thus, the inventive step should be deemed to be non-obviousness.

[2] The case holding that the inventive step in the patent application invention can not be easily derived from the cited invention on the grounds that the patent application invention and the quoted invention are identical to the elements of high-quality lecture plastic production materials, but their contents are different from each other, and therefore there is sufficient possibility that the patent application invention has a significantly improved and advanced effect than the publicly notified prior art, since the technical composition and action effects are different, and in such a case, there is sufficient possibility that the patent application invention has a significantly improved and advanced effect than the publicly notified prior art.

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

[1] Supreme Court Decision 94Hu1411 delivered on December 26, 1995 (Gong1996Sang, 559) Supreme Court Decision 96Hu559 delivered on November 11, 1996 (Gong1996Ha, 334 delivered on November 26, 1996) 95Hu781 delivered on November 26, 1996 (Gong197Sang, 85)

Korean Heavy Industries Co., Ltd. (Patent Attorney Park Gon-soo et al., Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Korean Intellectual Property Trial Office Decision 94Na1943 dated September 25, 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 also examined.

1. The judgment of the court below on the facts

(a) Patent applications filed on March 5, 1992: Not more than 0.30% of carbon, not more than 0.60% of 0.60% of carbon, not more than 0.0% of 0.10% of 0.40% of 0.40% of 0, not more than 0.5% of 0.0% of 0, not more than 0.5% of 005% of sulfur, not more than 0.05% of 0: 0.05% of 0.05% of 0: 0.01 to 0.010% of 0.0, not more than 0.0% of 0.5% of 0% of 0.0, not more than 0.0% of 0.0% of 0% of 0.0% of 0-10% of 0.05% of 0% of 0-5% of 0-5% of 0-5% of 5.0% of 5% of the total----10.5% of the inventions of the application.0.0.

B. When comparing and reviewing the origin of the patent application invention of this case and the scope of the creation of the cited invention, both inventions are somewhat different from the content of the original lawsuit that constitutes gold materials, and the composition of the class action is accurately consistent with the composition of the class action.

C. The applicant asserts that the content of the patent application invention of this case is characterized by specifying the sulfur, alkinium, and calkinium among the elements that form the calcium material, and that the processing of the materials is excellent due to the difference in the content of the constituent elements. However, the patent application invention of this case is about 0.01% or 0.01% or 0.01% or 0.05% respectively, and the cited invention is about 0.005% or 0.1% or less of alkinium and alkinium respectively. In the case of calcium, the content of both inventions is almost similar, and in the case of alkinium, the content of the patent application invention of this case is included within the scope of the cited invention, and in the case of alkinium, the content of the patent application invention of this case overlaps with the content of the cited invention of this case.

D. Therefore, the patent application invention of this case is merely a partial modification of the scope of content of each component of the quoted invention, and it is not possible to find out in the specification the description that allows a person with ordinary knowledge in the relevant technical field to recognize a special effect unexpectedly. Thus, the patent application invention of this case is recognized to have easily made an invention from the quoted invention, and in this regard, the original condition that a person with ordinary knowledge in the relevant technical field refused to register the patent application of this case pursuant to Article 29(2) of the Patent Act is justified.

2. Judgment of party members

A. The purpose of Article 29(2) of the Patent Act is to make an invention easily derived from the prior art, if the patent application is a creation that lacks inventive step, the degree of the difficulty in the creation that measure the existence of inventive step should be determined by considering the difference in the technical composition and the effects of the operation. In addition, if the composition of the patent application is considerably improved and promoted compared with the prior art, it shall be deemed that the invention can not easily be made by a person with ordinary knowledge in the art to which the invention pertains, in light of the purpose of the patent system to promote the development of inventive step, and it shall be deemed that the inventive step is non-obviousness (see Supreme Court Decision 95Hu781 delivered on November 26, 1996).

B. Therefore, based on the record, we will look at the invention of this case and the cited invention.

(1) First, we examine the sulfur (S) among the members of the two inventions.

On the other hand, the application invention of this case contains the sulfur content at least 0.036% but not more than 0.15% (it has side effects if it is more necessary) in order to secure the comfortableness, since there is an essential element to improve the compliance and displeasure, and in the case that there is an excessive sulfur, there is a blackk in the material where there is an excessive sulfur, the personality and shock intensity is reduced, and there is a side effect that there is a defect in the corrosion disclosure. On the other hand, the application invention of this case contains a sulfur content at least 0.05% and not more than 0.01% (it has side effects if it is more necessary) so both inventions are different. Accordingly, both inventions are less likely to cause such side effects as the sulfur content is low than the cited invention of this case.

(2) Furthermore, we examine the Aluminium (Al) and Pium (Ca) ingredients.

In the case of Piumium, 0.01% or 0.01% in the invention of this case and in the cited invention, 0.05% or 0.01% in the cited invention, and its development scope is similar. However, in the case of Aluminium, 0.01% or 0.05% in the invention of this case and in the case of the cited invention, 0.5% or less in the case of the cited invention of this case, the scope of the cited invention of this case is within the scope of the cited invention of this case, but the amount of use is less than the amount of use. Meanwhile, Aluminium in the cited invention is added to the cited invention of this case as a source for improvement of scalinium and scalinium, it is not an essential element, but it is added to the selective component of the cited invention of this case. Moreover, in the cited invention of this case, the combination of Aluminium and aluminium is formed in the form of a non-aluminium in its own metal form and form in the form of the compound (inium).

(3) In the specification of the patent application invention of this case as a result of the applicant's own testing, the patent application invention of this case contains a combination of calcium, Aluminium, etc. as small and a calcium, and thus, the invention of this case can obtain a large-scale gold material with a high quality of water that does not cause any defect in the surface because it has a small and a calcium, etc. as it exists as a calcium, and has a calcium, etc. as a calcium, it is more mechanical character than the existing gold materials, has excellent mechanical processing, such as comfortable calcium, etc

C. The results may vary according to the formation scope, organization status, and formation conditions of the combined component in the field of knives, and the changes in physical properties may occur due to the organic combination relationship with other components. Thus, if the invention in this case and the quoted invention in this case are the same as the above, the technical composition and operation effect of the invention in this case are different. Thus, the invention in this case may be deemed to have a new action effect significantly improved and advanced than the publicly notified prior art, so if it is sufficient to recognize that the invention in this case has a new action effect significantly improved and advanced than the publicly notified prior art, the invention in this case cannot be easily derived from the cited invention in this field of technology to which the invention in this case belongs. Thus, the inventive step can be recognized.

Therefore, the court below should have carefully examined the effects of the difference in the scope of creation of the sulfur ingredients as above or the impact of the sulfur ingredients on the materials, whether not only the composition ratio of aluminium or calium is essential, its role, the existence form and form in the organization or calcium, and the impact of such elements on the materials, etc. by examining in detail, and then denied the inventive step because the invention in this case falls within the scope of the identity of the cited invention and the composition ratio of the source of creation and its formation, and it is clear that there was an error of failing to exhaust all the necessary deliberations or a decision of the court below, and that such error affected the decision of the court below. The grounds for appeal on this point are with merit.

3. Therefore, the decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Sung-sung (Presiding Justice)