The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

We examine the grounds of appeal ex officio before determining them.

If a trial decision invalidating a patent has become final and conclusive while a patent on the basis of a patent right is pending in a final and conclusive trial, the patent right shall be deemed never to have existed (the main text of Article 133(3) of the former Patent Act (amended by Act No. 12753, Jun. 11, 2014)). Thus, without merit, a claim for patent infringement prohibition, etc. premised on the effective existence of the patent right is without merit.

(See Supreme Court Decision 2007Da45814 Decided October 14, 2010, etc.). According to the records, the court below’s decision that the patent of this case (patent registration number No. 637838)’s claim 8 (hereinafter “instant Claim 8”) should be invalidated is final and conclusive while the appeal of this case is pending.

Therefore, since the patent right of the instant Claim 8 invention is deemed to have never existed from the beginning, the lower court’s rejection of the Plaintiff’s claim based on the said patent right is right and wrong, and the allegation in the grounds of appeal premised on the validity of the said patent right is without merit

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.