[1] Where the technology subject to a request for a trial to confirm the scope of a utility model and the technology subject to a request for a trial are not specified to the extent that the registered device can be compared with the registered device, the measures to be taken by the Intellectual Property Tribunal

[2] The case holding that the trial decision which held that the Korean Intellectual Property Tribunal did not take measures such as ordering the claimant to correct the registered device and did not specify the technology which is the object of a request for a trial on confirmation of the scope of the right against the owner of the utility model right on the registered device

[1] In a request for a trial for confirmation of the scope of a right of a utility model, the technology subject to a request for a trial shall be specified as much as possible in comparison with the registered device in question. For that purpose, the detailed composition of the subject matter shall not be required, and the specific composition of the part corresponding to the elements of the registered device shall be stated. However, if the specific composition is not specified to the extent necessary for determining the difference in comparison with the elements of the registered device, and if the technology subject to a request for a trial is unclear and is not specified to the extent that it can be compared with the registered device, the Korean Intellectual Property Tribunal shall take measures such as ordering the correction of the description and drawing of the technology subject to a request for a trial to the extent that the essential element is not changed, and if it is insufficient to do so, the request for a trial shall be dismissed.

[2] The case holding that the trial decision which held that the Intellectual Property Tribunal did not take measures such as ordering the claimant to correct the registered device and did not specify the technology which is the object of a request for a trial on confirmation of the scope of the right against the owner of the utility model right in the registered petition against the owner of the utility model right

[1] Article 50 of the Utility Model Act / [2] Article 50 of the Utility Model Act

[1] Supreme Court Decision 99Hu2372 delivered on August 21, 2001 (Gong2001Ha, 2116), Supreme Court Decision 2000Hu2323 delivered on April 23, 2002 (Gong2002Sang, 1285) Decided May 24, 1994

Plaintiff (Patent Attorney Park Young-young, Counsel for the plaintiff-appellant)

Defendant (Patent Attorney Han-sung et al., Counsel for the defendant-appellant)

Patent Court Decision 2001Heo5190 delivered on October 11, 2002

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. As to the grounds of appeal Nos. 1 and 4

In making a request for a trial for confirmation of the scope of a right of a utility model, the technology subject to a request for a trial shall be specified to the extent that it can be prepared with the registered device, and for that purpose, all the detailed composition of the subject matter is not required, and the specific composition of the part corresponding to the elements of the registered device shall be stated. However, if the specific composition is not specified to the extent that it is necessary for determining the difference compared with the elements of the registered device, and if the technology subject to a request for a trial is unclear and is not specified to the extent that it can be compared with the registered device, the Korean Intellectual Property Tribunal shall take measures such as ordering the correction of the description and drawing of the technology subject to a request for a trial to the extent that the substance is not changed, and if it is insufficient for such specific purpose, the request for a trial shall be dismissed (see Supreme Court Decision 9Hu2372, Aug. 21, 2001).

According to the reasoning of the judgment below, in order to determine whether the technology of this case against the plaintiff who is a utility model right holder of the registered bill of this case falls under the scope of the right in the registered bill of this case, the court below should first specify the scope of the right to be claimed for adjudication against the plaintiff, which is the object of the request for adjudication, to the extent that it can be judged in comparison with the composition of the registered bill of this case and the difference between the support of the knife and the support of the knife, and the knife, which constitutes the part of the knife of the box, can be altered into the inside and outside of the box, and accordingly, it can be determined that the defendant did not clearly mention the contents of the request for adjudication on the knife of the registered bill of this case and the revised bill of this case to the extent that the difference can be determined in comparison with the composition of the amended bill of this case ("2 knife") and the revised bill of this case.

In light of the above legal principles and records, the above recognition and judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the specification of technology subject to a request for a trial in a request for a confirmation of the scope of right, as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

Even if the court below specified the technology subject to a request for a family trial as seen in the instant trial decision, it is assumed that the technology subject to a request for a trial cannot be deemed to have been publicly announced by the publication published prior to the filing of the request for a registration of this case. As seen earlier, insofar as the part of the judgment of the court below is deemed to be justifiable, even if there were errors in this part of the judgment, it does not affect the conclusion of the judgment, and thus, the argument in the grounds of appeal as to this part

3. Regarding ground of appeal No. 3

According to the reasoning of the judgment below, the court below determined that the trial decision of this case on the premise that the technology which is the object of the request for a trial is specified is illegal, and there was no determination as to whether the request for a trial of this case violates the principle of res judicata. Therefore, the judgment below did not err in the misapprehension of legal principles as to the principle of res

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Hyun-chul (Presiding Justice)