[1] Criteria for determining whether an invention compared to a patented invention falls under the scope of the patent right of the patented invention, and the meaning and method of determining “the solution principle of a task is identical in both inventions”

[2] The case holding that a patent invention whose name "protruding the wall board studs" is equivalent to the invention in question, and the invention in question falls under the scope of the right to the patent invention of paragraph (1) of the patented invention, on the ground that "an invention in question is identical to the invention in question, where "an invention in question (230) and a protruding (120) studs (121) studs (120) studs all the studs of the studs (123), and the head (123) of the studs (123) studs) studs (123), which are lower than the maximum diameter, cannot be deemed as an invention in question that is linked to the invention in question where "an invention in question is adopted by the 240 studs (240) studs)."

[1] In order for an invention compared to a patented invention to be deemed within the scope of patent right of the patented invention, an organic combined relationship between each element and its component must be included in the scope of patent right of the patented invention. On the other hand, even in cases where there are parts of the composition of the patent right of the patented invention in the comparison invention, if both inventions are identical with the solution principle of task, even if the invention is in accordance with such values, it can achieve the same purpose as the patented invention, and has the same effect as the patented invention, and if it is obvious to the extent that anyone can easily think if it is an ordinary technician, it should be determined on the basis that the invention is an identical technology with the one already known at the time of the application of the patented invention or an ordinary technician, who could easily make an invention from the known art, or that the exchanged composition of the comparison invention through the procedure for application of the patented invention is excluded from the scope of patent right, and it should be determined on the basis that it still belongs to the composition of the patented invention as a whole and it is not equivalent to the specification of the patented invention.

[2] The case holding that the invention subject to confirmation is not identical to the invention subject to confirmation because it adopts the patented invention "an invention subject to confirmation which is composed of a combination of 121 et al. with the upper part (the upper part of 240) of the upper part (the upper part of 230) of the patent invention "an invention subject to confirmation, which is composed of "an invention consisting of a combination of the upper part (the upper part of 240) combined with the upper part (the upper part of 123) of the upper part (the upper part) of the original part (the upper part) of the original part of the 240 invention, which is called "an invention subject to confirmation", since the upper part (the upper part of 123) of the 1 invention is a combination with the upper part (the upper part) of the upper part (the upper part) of the 190 invention and the upper part (the upper part) can not be seen to be identical to the upper part (the upper part) invention cannot be seen to be identical to the upper part (the upper part) invention.

[1] Articles 97 and 135 of the Patent Act / [2] Articles 97 and 135 of the Patent Act

[1] Supreme Court Decision 97Hu2200 Decided July 28, 200 (Gong2000Ha, 1954) Supreme Court Decision 2004Da29194 Decided February 25, 2005, Supreme Court Decision 2007Hu3806 Decided June 25, 2009 (Gong2009Ha, 1239)

Plaintiff (Patent Attorney Cho Man-ho, Counsel for the plaintiff-appellant)

Defendant (Patent Attorney Kim Sung-hwan, Counsel for defendant-appellant)

Intervenor Co., Ltd. (Patent Attorney Kim Sung-hwan, Counsel for defendant-appellant)

October 5, 2010

1. The decision made by the Intellectual Property Tribunal on May 18, 2010 on the case No. 2009Da1727 shall be revoked.

2. The costs of the lawsuit shall be borne by the defendant's successor, including the part resulting from the succession.

The same shall apply to the order.

1. Basic facts

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 2, 3, and 12, the purport of the whole pleadings

A. Patent invention of this case

(a) Name of the invention: Dried joints of brick plates;

2) Date of application/registration date/registration number: May 14, 2004/ June 12, 2006/ No. 5912488/

3) A patentee: Defendant Intervenor succeeding to the patent (who was registered by the Defendant at the beginning, and on July 5, 2010, transferred the patent right to Defendant succeeding Intervenor and completed the registration of transfer).

4) Claims

청구항 1. 벽면(5)과 벽판(6) 사이로 제공되는 공간에 접착제(3)로 고정구(1) 및 삽착구(2)가 고정되도록 구성하고, 상기 고정구(1)와 삽착구(2) 사이에 단열재(7)가 개재되도록 구성된 벽판 고정용 결착구(A)에 있어서(이하 ‘구성 1’이라 한다), 상기 고정구(1)는 접착제(3)가 간격유지부재(111)를 갖는 제1플레이트(11) 뒷면 및 벽면(5) 사이에 접착됨과 동시에 그 일부가 제1플레이트(11)에 형성된 다수 개의 제1노출공(112)을 통해 앞면으로 노출 경화되어 고정되도록 구성하고(이하 ‘구성 2’라 한다), 상기 삽착구(2)는 걸림테두리(211)를 갖는 제2플레이트(21)의 중심을 향해 제2보강리브(22)(22')들 사이에 양측 및 제2플레이트(21)가 관통된 형태를 취하는 지지구(23)를 일체로 형성하되(이하 ‘구성 3’이라 한다), 상기 삽착구(2)가 걸림수단(4)에 의해 간격유지부재(111)의 선단에 결합되도록 구성되고, 상기 걸림수단(4)은 고정구(1)의 앞쪽으로 끝이 뾰족하게 돌출되도록 형성된 간격유지부재(111)에 링 형태를 갖는 걸림홈(41)을 일체로 형성하고, 삽착구(2)의 제2플레이트(21) 뒷쪽으로 돌출되게 형성된 중공 가이드(42) 전방에 걸고리(44)를 형성하여 상기 걸림홈(41)에 걸고리(44)가 결합되어 걸려지도록 구성되며, 상기 걸고리(44)는 중공 가이드(42) 전방 양측의 공간부(43)(43') 사이로 제공되는 탄성편(45)의 선단에 일체로 구성됨(이하 ‘구성 4’라 한다)을 특징으로 하는 벽판고정용 결착구(이하 ‘이 사건 제1항 발명’이라 한다).

2. Claims and 3. (Dismissal)

5) Drawings: [Attachment 1] The cities of the instant patent invention are as follows.

(b) An invention subject to verification;

The technical content and drawings of a particular invention subject to confirmation shall be as specified in attached Form 2 in the description and drawings of the invention subject to confirmation and as specified in the city.

C. The procedural background

1) On July 17, 2009, the Plaintiff filed with the Intellectual Property Tribunal a claim against the Defendant to confirm that the challenged invention does not fall under the scope of the right of the instant Claim 1.

2) After the Intellectual Property Trial and Appeal Board reviewed the above case of appeal as No. 2009Da1727, May 18, 2010, the challenged invention was rendered a trial ruling dismissing the Plaintiff’s claim on the grounds that the invention subject to confirmation was identically infringed on the invention of Paragraph 1 of this case and falls under the scope of its right.

2. Issues of the instant case

The parties concerned dispute whether the composition of the challenged invention is identical or equal to each other in comparison with the composition of the Claim 1 invention of this case, and the issue of this case is within the scope of rights through comparison with the composition of the Claim 1 invention of this case.

3. Whether the invention subject to confirmation falls under the scope of the right to the invention under paragraph (1) of this case.

A. Preparation for the composition of the challenged invention and the instant Claim 1 invention

1) Preparation for Composition 1

Composition 1 of the instant Claim 1 is a prerequisite for the application of the method or means of the joints of the joints of the wall board fixed. “The joints of the wall board fixeds of the wall board (A) consisting of the joints of the joints of (5) and the joints of (6) in the space provided in the wall board (3) and the joints of (1) and inserteds (2).” The joints of the wall board (A) consisting of the joints of the joints of (1) and the joints of the joints of the fixeds of (2).

The composition of the invention in question, corresponding thereto, is "a composition that sets up and installs a solid 100 (100) to the wall of the wall, sets up a stove with a stoves (120), combines a stoves (120) with a stoves (120) with a stoves (120), and sets up a wall with a stoves by spreading a protruding part

The two composition is substantially the same in that it is a structure that adds rheat to the wall surface by inserting ruptures between a mutually combined fixed tool and a inserted rupture and then sets it into a rupture.

2) Composition 2

Composition 2 of Claim 1 invention of this case pertains to the shape of the fixed apparatus, and “Sten-gu(1) is linked to the back of No. 1 display (11) with no distance maintenance (11), and the wall(5) with the distance maintenance (111), and at the same time, a part of the invention of Claim 1 of this case is exposed, lighted, and fixed on the front through multiple 1 p. 1 p.m. (12) formed in No. 1 display (11).”

The composition of the challenged invention in response thereto is the "a fixed tool in the form of original plates (110) equipped with multiple balls (11) and a fixed tool (100) in which there is no strings that make it possible to put heat in the center."

The two compositions are substantially the same in that they have a means of cutting short heat (e.g., tamper, tamper) and are equipped with an exposed hole to the 1plate so that the 1plate is replaced by the front of the 1plate (Support plate), thereby attaching the 1plate to the wall.

3) Preparation for Composition 3

The composition 3 of the Claim 1 invention of this case pertains to the shape of the insertion, and "the inserted 2(2) constitutes a single unit of the area (23) in which the two sides and the 2000 (21) of the 2000 (21) (21) are linked to the center of the second 200 (21) (21) (21) (22) are linked to the center of the 2000 (21) (21) (21)."

The composition of the challenged invention is "the composition of the original plate consisting of protrudings (220) and protrudings (250) connected to reinforcement stones (220)."

The two compositions are substantially the same in that they are the structure that is to be attached to the wall board by providing reinforcement measures for the second panel(s).

4) Preparation for Composition 4

이 사건 제1항 발명의 구성 4는 고정구와 삽착구의 걸림수단에 관한 것으로서, “삽착구(2)가 걸림수단(4)에 의해 간격유지부재(111)의 선단에 결합되도록 구성되고, 상기 걸림수단(4)은 고정구(1)의 앞쪽으로 끝이 뾰족하게 돌출되도록 형성된 간격유지부재(111)에 링 형태를 갖는 걸림홈(41)을 일체로 형성하고, 삽착구(2)의 제2플레이트(21) 뒷쪽으로 돌출되게 형성된 중공 가이드(42) 전방에 걸고리(44)를 형성하여 상기 걸림홈(41)에 걸고리(44)가 결합되어 걸려지도록 구성되며, 상기 걸고리(44)는 중공 가이드(42) 전방 양측의 공간부(43)(43') 사이로 제공되는 탄성편(45)의 선단에 일체로 구성”된 것이다.

The composition of the invention in question in response thereto shall consist of 120 protrudings (120) in the support board (100) of the ancient-gu (100) (110). The upper part of the original part of the flag absence shall be equipped with a tamper (121), with a tamper (230), and the original part of the tamper (230) shall be filled with a tamper (230), and the inside part of the tamper (230) shall be filled with a tamper when the head of the tamper (123) inserted into the original part of the tamper (121), and the above head part shall be filled with a tamper (121) so as to be fixed without a fixed tamper, and the head and tamper (232) shall be formed in the upper part of the original part of the tamperus and the head and tamper (200) shall be formed with a height corresponding diameter.

In comparison with both composition, ① In the invention of this case, the combined head (41) of the 4th parallel stamping form is collectively formed; the invention of this case shall be equipped with a 121 stamping part (121) formed at the upper end of the 120 stamping unit (120); ② in the invention of this case, the 200 stamping part (21) formed at the lower end of the 4th parallel 20 strawing column (44) combined 42 strawing column (44) combined 20 strawing column (12) combined 42 strawing column (42) combined 422 combined stamping structure; the difference between the two 20 strawing part and the upper end of the 24th parallel 20 strawing column (44) combined 20 strawing column) combined with the upper end of the 20 strawing unit (45) combined with the upper end.

In addition, due to such differences in the composition of Paragraph 1 of this case, the invention of this case is a combination of the tamper (121) at the bottom (123) of the tamper (240) in the tamper (1) invention of this case only with the tamper (41) where the tamper (230) is protruding, and the tamper (120) of the tamper (121) is fixed with the tamper (120) structure of the tamper (240). However, in the invention of this case, the combination of the tamper (121) of the tamper (240) with the tamper (240) structure of the tamper (240) with the tamper (123), which is lower than the upper diameter.

(b) Preparation results.

1) Whether it constitutes a violation of language or text

If the invention subject to confirmation falls under the scope of the right to claim 1 of this case by a literal infringement, all of the elements of the invention subject to confirmation must be used, and as seen above, there is a difference between the composition 4 of claim 1 of this case and the composition of the invention subject to confirmation corresponding thereto, and there is an effective difference due to such a difference in composition, so the invention subject to confirmation cannot be deemed to fall under the scope of the right to claim 1 of this case by a literal infringement.

2) Whether it constitutes an equal infringement

A) Criteria for determination

In order for an invention to be compared with a patented invention to be deemed within the scope of the right of the patented invention, an organic combined relationship between each element and its component stated in the claim(s) of the patented invention must be included in the invention as it is. Meanwhile, even in cases where there are parts of a composition or modification described in the claim(s) of the patented invention in the comparison invention, if both inventions share the same solution principle, even if they share such values, they can achieve the same purpose as the patented invention even if they share such values, and have the same effect as those of the patented invention, and if it is obvious to the extent that anyone can easily consider if it is an ordinary technician, it should be determined on the basis of the same description as the one already known in the patent application(s) of the patented invention as well as on the basis of the same description as the one mentioned in the claim(s) of the patented invention(s) of the same invention as the one mentioned in the specification(s) of the invention(s) of the same invention(s) of the same invention as the one mentioned in the claim(s) of the same invention(s).

B) Specific determination

As seen above, in order to determine whether the challenged invention falls under the scope of the right to the claim 1 invention of this case notwithstanding the difference between the claim 1 invention of this case and the composition of the challenged invention of this case, we first examine whether the solution principle of the task is identical in both inventions.

In full view of the purport of the arguments in Gap evidence Nos. 3, 4, 5, 7, and 8, the technical field of "a strings for attaching heat to the wall surface" to which the invention of this case belongs, the composition of "a strings of the strings" prior to the application of the patent invention of this case had been inserted into the strings of the strings and strings through the strings and strings, etc. after having the end of the strings of the strings, which are formed by using the strings and strings of the strings, etc., and in comparison with such prior art, the 111) invention of this case forms a bowling-type 41 strings (41), and the combined 200 21 strings (21) of the 241 strings of the 241 strings of the 244 strings of the 2442 strings of the ball.

In light of these circumstances, paragraph (1) invention of this case is an invention with the intrinsic and distinctive composition of "gal means (4) which consisting of a combination of "gals in a bowling form (41)" and "gals (45) gals (44) gals (4) gals (4) gals (4) gals (4) gals (4) gals (4) gals), which stick to the space of the front line.

However, as seen above, the invention in question adopts the "a combination method consisting of a combination (121) of the strings (120) of the strings (120) by the core structure of the parallel core structure of the inserted air (230) and the brings (240) of the instant Claim No. 1, unlike "a combination consisting of a strings (240) with a strings (121) of the instant Claim No. 1’s strings (123), and the head (123) of the strings (240) of the strings (240) with a diameter lower than the maximum diameter."

Therefore, the invention subject to confirmation is identical to the solution principle of both inventions, since the invention subject to confirmation has replaced the essential and distinctive composition of the invention subject to paragraph (1) of this case by a different composition.

Furthermore, even if the effects of the instant Claim 1 invention are identical to those of the instant Claim 1 invention, as seen above, insofar as there is a difference in the combined power that allows the instant Claim 1 invention to be more strongly combined with the insertingle compared to the instant Claim 1 invention, it cannot be deemed that both inventions have the same effect, regardless of the composition where both inventions are converted.

C) Sub-determination

Therefore, since the invention in question cannot be seen as an equivalent invention to the invention in paragraph (1) of this case, it cannot be seen that the invention in question belongs to the scope of the right to the patented invention in paragraph (1) of this case due to equal infringement.

4. Conclusion

If so, the invention subject to confirmation does not belong to the scope of the right to the invention under Paragraph (1) of this case, and the decision of this case has different conclusions, and therefore, it is unlawful to accept the plaintiff's claim seeking revocation.

[Attachment 1] Drawings of the patented invention of this case: omitted

[Attachment 2] Descriptions and Drawings of the Invention subject to Confirmation: omitted

Judges Kim Yong-con (Presiding Judge) and Kim Jong-il (Presiding Judge)