[1] Criteria to determine whether the relation between the registered device and the (a) device is equal

[2] The scope of the litigation seeking revocation of adjudication

[3] The case holding that (a) device does not fall within the scope of the right in the registered device, in preparation for the 's formation of a stable on the top of the registered device' and 's establishment of a stable installed at the center of the (a) device in a fixed board with a V

[1] Article 50 of the former Utility Model Act (amended by Act No. 6412 of Feb. 3, 2001) / [2] Article 186 of the Patent Act / [3] Articles 9 (4) and 50 of the former Utility Model Act (amended by Act No. 6412 of Feb. 3, 2001)

[1] Supreme Court Decisions 97Hu2200 delivered on July 28, 200 (Gong200Ha, 1954) 98Hu2351 delivered on November 14, 200 (Gong2001Sang, 65) 98Hu2856 delivered on June 15, 200 (Gong2001Ha, 1539) 98Hu836 delivered on June 15, 200 (Gong2001Ha, 1651 delivered on June 201), 2000Hu617 delivered on June 15, 200 (Gong201Ha, 1651 delivered on June 15, 201), 200Hu617 delivered on June 23, 201 (Gong2001Ha, 1655 delivered on June 21, 201)

Park Jong-soo (Patent Attorney Hong-chul et al., Counsel for the plaintiff-appellant)

[Plaintiff-Appellee] Plaintiff (Patent Attorney Tae-tae et al., Counsel for plaintiff-appellee)

Patent Court Decision 2001Heo5084 decided May 23, 2002

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

1. As to the grounds of appeal Nos. 1, 2, and 3

A. The lower court determined on the following grounds that the Defendant’s (A) device as indicated in the holding of the lower judgment did not fall under the scope of the Defendant’s right to the instant registered complaint (registration number No. 176249) where the Defendant’s (A) device as indicated in the

(1) The registered device of this case, in addition to the formation of a stable for stable use at the center of a fixed board (claims 1), is used on the upper part of the central part of the fixed board (claims 2), while the device of subparagraph (a) is not formed on the upper part of the fixed board, but on the upper part of the upper part of the fixed board, "the installation installed on the upper part of a fixed board formed at the center and installed on the top of a fixed board by V is composed of different components on its behalf. In the aspect of its effect, the registered device of this case can reduce manufacturing costs and simplifys manufacturing process by omitting a separate installation for fixing a stable, while the device of subparagraph (a) can only be deemed as having a part of the registered axis and fixed board that does not require a technical difference between the registered axis and the entire installation of a reduction board and the design of this case. Therefore, the registered device of this case can only be deemed as having a difference between the registered axis and the entire installation of a reduction board and the design of this case.

(2) The defendant argues that the composition of "conscising a stable for a bridge to the center of the upper part of the part of the "section" as stated in paragraph (1) of the claim of this case does not ordinarily explain the fixing board, but in full view of the detailed description and the purport of the drawing, it is not an essential element of the device, and therefore, in the end, it does not form a stable on a fixed board, and the (Ga) device, which installs a stable by a separate installed device, falls under the scope of the right within the registered device of this case. However, according to Article 9 (4) of the former Utility Model Act (amended by Act No. 6412 of Feb. 3, 2001), the claim of a utility model registration must only state matters that are not indispensable for the formation of the device, and the claim of this case is formed at the center of the part of the upper part of the part of the road, and the claim of this case, which is not an essential element of the registered device of this case.

(3) Ultimately, the (Ga) design does not fall within the scope of the right of the instant proposal for registration, since there is a lack of "a composition forming a stable to satisfe the satfe the satfe the satfe the satfe in the satfe of the instant proposal

나. 등록고안의 등록청구범위의 청구항이 복수의 구성요소로 되어 있는 경우에는 그 각 구성요소가 유기적으로 결합한 전체로서의 기술사상이 보호되는 것이지, 각 구성요소가 독립하여 보호되는 것은 아니므로, 등록고안과 대비되는 ㈎호 고안이 등록고안의 권리범위에 속한다고 할 수 있기 위하여는 등록고안의 각 구성요소와 구성요소 간의 유기적 결합관계가 ㈎호 고안에 그대로 포함되어 있어야 하고, 다만, ㈎호 고안에서 구성요소의 치환 내지 변경이 있더라도, 양 고안에서 과제의 해결원리가 동일하며, 그러한 치환에 의하더라도 등록고안에서와 같은 목적을 달성할 수 있고 실질적으로 동일한 작용효과를 나타내고, 그와 같이 치환하는 것을 그 고안이 속하는 기술분야에서 통상의 지식을 가진 자(당업자)가 극히 용이하게 생각해낼 수 있을 정도로 자명하다면, ㈎호 고안이 등록고안의 출원시에 이미 공지된 기술 내지 공지기술로부터 당업자가 극히 용이하게 고안할 수 있었던 기술에 해당하거나, 등록고안의 출원절차를 통하여 ㈎호 고안의 치환된 구성요소가 등록청구범위로부터 의식적으로 제외된 것에 해당하는 등의 특별한 사정이 없는 한, ㈎호 고안의 치환된 구성요소는 등록고안의 대응되는 구성요소와 균등관계에 있는 것으로 보아 ㈎호 고안은 여전히 등록고안의 권리범위에 속한다고 보아야 한다 ( 대법원 2001. 8. 21. 선고 99후2372 판결 , 2001. 9. 7. 선고 2001후393 판결 참조).

C. In comparison with the registered device of this case, it is inappropriate for the court below to determine that there is lack of such composition in comparison with the (a) design of this case and the (b) design of this case, as if it were compared with the (a) design of this case, (a) design of this case does not specify specifically whether or not the (a) device falls within the scope of the right of a claim within the registered device of this case, and (a) design of this case "a composition forming a stable string to the upper board" in response to "a composition forming a stable string to the upper board among the essential elements of the registered device of this case". However, in light of the above legal principles and records, it is inappropriate to determine that there is lack of the composition of the two claims (1) and (a) design of this case within the registered device of this case and (1) design of this case are "the composition of a stable string to the upper board, forming the remainder of claims (1) which does not fall within the scope of the registered device of this case, excluding the remainder of claims (1) design.

D. Therefore, the court below's decision that the (A) device does not fall under the scope of the right within the registered complaint of this case is just and there is no error in the misapprehension of legal principles as to the scope of the right within the registered complaint which affected the conclusion of the judgment as otherwise alleged in the ground of appeal.

2. As to the fourth ground for appeal

A lawsuit seeking the revocation of a trial decision, which is a lawsuit against a trial decision by the Intellectual Property Tribunal, which is an administrative disposition, constitutes an appeal litigation, and the subject matter of the lawsuit is the substantive and procedural illegality of the trial decision. Thus, even if the trial decision was not decided, the parties may newly assert and prove the grounds for the illegality of the trial decision in the procedure for the revocation of the trial decision, and the court of the lawsuit seeking the revocation of the trial decision may deliberate and determine the grounds for the decision without any restriction (Supreme Court Decision 2000Hu1290 delivered on June 25, 2002). Thus, the court below's decision that the (a) subparagraph does not fall under the scope of the right to the registered device of this case, in preparation for the "cons with the composition of a stable formation on the upper board" in the registered appeal of this case and the (a) item (a) invention with the installed tool formed at the center of the central part, and there is no error in the misapprehension of legal principles as to the scope of the right to the registered design of this case, contrary to the grounds for appeal.

3. 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 on the bench.

Justices Lee Han-gu (Presiding Justice)