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(영문) 대법원 2015.08.13 2013도10265
특허법위반
Text

All appeals are dismissed.

Reasons

The grounds of appeal are examined.

1. Article 224 subparag. 3 of the Patent Act prohibits an act of indicating an article that is not a patent, an article that is not a patent application, an article that is not a patent-related one, or an article produced by a non-patent-related method or a method that is not a patent-related one, in an advertisement, etc. to produce, use, or transfer an article that is not a patent-related one, or an article that is produced by a patented method or a method that is under patent-related one, or an act of

The purport of the above provision is to protect the safety of transaction by punishing the act of misunderstanding the public by abusing the public confidence in the patent and favorable to the transaction by patent.

In light of such purport, even if the technical composition of an article indicated by a patented product, etc. has partially modified the composition of the invention described in the claims, if such modification is merely an addition, deletion or modification of the technical composition to the extent of ordinary employment by a person with ordinary knowledge in the relevant technical field (hereinafter referred to as “ordinary technician”), and if such modification does not result in any special difference in the effects of the invention, etc., it cannot be deemed that the act of indicating the article with the patented product, etc. constitutes an act of indication prohibited under the said provision.

2. The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following circumstances.

(1) On December 16, 2003, Defendant A filed an application for registration of the patent invention of this case with the inventor A and the applicant corporation B and received E patent registration (patent registration number F).

D. Claim No. 9 of the instant patent invention (hereinafter “instant Claim No. 9”) is open to the general public.

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