(a) Whether the grounds for public notice is excluded in determining the scope of rights on a registered petition (affirmative);

(b) The case holding that since the Defendant's device as to bals as to bals has different technical composition and effects of the device from the other parts except for the section for common use in the public notice as well as the technical composition and effects of the device, it cannot be deemed that the Defendant infringed on the victim's utility model right;

A. In determining whether a device is identical with or similar to the right of a utility model on which the device is registered, the scope of the right should be compared and examined by comprehensively taking into account not only the technical device against the product such as the shape, structure, or combination, but also the use value and use effect of the device, such as the use value and use purpose. In registering a utility model, the utility model right can not be extended even for the publicly notified reason that is granted only to new professional engineers and that is not systematically combined with new technical effects.

(b) The case holding that the defendant's device as to bals is not deemed to have infringed on the victim's utility model right on the ground that the defendant's device does not fall within the scope of his/her utility model right because the defendant's device as to bals has different technical composition and effects of the part excluding the section for common use

Articles 8 and 25 of the former Utility Model Act (amended by Act No. 4209 of January 13, 1990)

A. Supreme Court Decision 89Hu179 delivered on January 23, 1990 (Gong1990, 529) 89Hu1851 delivered on September 28, 1990 (Gong1990, 2165) 90Hu823 delivered on March 12, 1991 (Gong1184)

Defendant

Prosecutor

Daegu District Court Decision 90No1376 delivered on December 6, 1990

The appeal is dismissed.

The grounds of appeal are examined.

1. In determining whether a device is identical with or similar to the right of a utility model on which the device has been registered, the scope of the right shall be compared and examined by comprehensively taking into account not only the technical device against goods such as the shape, structure, or combination, but also the use value of the device and the effects of the utility model, such as the purpose of its use, in order to determine whether the utility model is identical with or similar to the right of a new utility model. In the event that the reason for public notice is included in the registration of a utility model, the utility model right can not be extended to the reason for public notice that is granted only to new professional engineers and that is not systematically combined with new technical effects (see, e.g., Supreme Court Decisions 89Hu1851, Sep. 28, 190; 89Hu179, Jan. 23, 1990; 88Hu585, Jun. 27

Among the devices of this case registered by the court below, the technical composition, such as drilling a hole on the bottom of the cross-section of the bridge, and putting the protruding part into the hole before the application of the device of this case, is publicly known to the applicant. Thus, the part for the public use of the device of this case cannot be recognized exclusively and exclusively by the applicant. Furthermore, the defendant's design of this case was connected to the device of this case to the bottom of the cross-section in comparison with the device of this case of this case by comparing and comparing the device of this case with the device of this case of this case of the victim, while the device of this case of this case of this case was fixed at the bottom of the breath of the breath pipe, which was connected to the device of this case of this case of this case to the bottom of the breath pipe, was fixed at the bottom of the breath pipe so that it can be easily divided from the cross-section, and the technical composition and effect of this case are different, so the defendant's device of this case cannot be seen as the utility model right of this case.

The judgment of the court below is just in light of records and the above legal principles, and there is no violation of rules of evidence, misapprehension of legal principles, or omission of judgment, such as the theory of lawsuit.

The Supreme Court en banc Decision 70Hu19 Decided July 24, 1970 cited by the theory of the lawsuit was discarded by the party members 81Hu56 Decided July 26, 1983, and the above decision of the court below is not inconsistent with the Supreme Court Decision 80Hu73 Decided April 13, 1982 cited by the theory of the lawsuit. The arguments are groundless.

2. The lower court cannot be deemed to have erred in failing to exhaust all necessary deliberations, recognizing the part for the official use of the victim’s device of this case, and citing the notice of Japan and the Korean Utility Model Gazette cited in a copy of the decision of March 19, 1990 rendered by the Korean Intellectual Property Office 89Da601, which was bound to the records. The argument is groundless

3. The court below ruled that the defendant's design of this case does not fall within the scope of the victim's right of utility model of this case and thus, the defendant cannot be held liable for the violation of utility model right without further determination as to the criminal intent of the defendant. Thus, it is no longer necessary to further judge the defendant's criminal intent.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-dong (Presiding Justice) Kim Sang-won