[1] In a case where the previous technology is described in the specification of the registered petition, whether the previous technology shall be deemed a device as stipulated in each subparagraph of Article 5(1) of the former Utility Model Act in determining whether the newness or non-obviousness of the device claimed in the application is denied (affirmative)

[2] The case holding that even if the device described in the previous technology is treated as one of the devices described in each subparagraph of Article 5 (1) of the former Utility Model Act in the specification of the registered complaint concerning the "cold air conditioners", the newness and non-obviousness of the registered complaint shall not be denied on the basis of the comparative complaint

[1] Article 5(1) of the former Utility Model Act (amended by Act No. 6412 of Feb. 3, 2001) provides that a device that was publicly known or publicly worked in the Republic of Korea prior to the filing of utility model registration and a publication published inside or outside the Republic of Korea prior to the filing of utility model registration shall not be registered, and Article 5(2) of the former Utility Model Act provides that a device that is easily designed by a person with ordinary knowledge in the art to which the device pertains shall not be registered, unless there are special circumstances, by a device that falls under any subparagraph of Article 9(2) of the same Act. Thus, in cases where the previous technology is described in the specification attached to the application for utility model registration pursuant to Article 9(2) of the same Act, it shall be deemed to have been new and non-obviousness of the device compared to the technology known in the art prior to the filing of the application. Thus, the previous technology shall be deemed one of the devices listed in each subparagraph of Article 5(1) of the same Act in determining whether the newness or non-obviousness of the device claimed.

[2] The case holding that even if the device described in the previous technology is treated as one of the devices described in each subparagraph of Article 5 (1) of the former Utility Model Act (amended by Act No. 6412 of Feb. 3, 2001), the registered device is not denied by the comparative device.

[1] Article 5 (1) and (2) of the former Utility Model Act (amended by Act No. 6412 of Feb. 3, 2001) / [2] Article 5 (2) of the former Utility Model Act (amended by Act No. 6412 of Feb. 3, 2001)

Gaba Baba Baba Baba Baba (Patent Attorney Seo-dae et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 200Na1446 decided May 1, 200

Patent Court Decision 2003Heo6821 Decided June 3, 2004

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

The grounds of appeal are examined.

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

According to the reasoning of the judgment below, the court below determined that the registered device (registration number omitted) of this case, the name of which is "hefrigerants and air conditioners", is not easily designed by a person with ordinary knowledge in the technical field from the device published in No. 19709 of the Patent Gazette (hereinafter referred to as "the device published in No. 1" of the Patent Gazette, the device published in No. 7-19709 of the Patent Gazette of Japan (hereinafter referred to as "the device published in No. 7-19709 of the Patent Gazette of Japan"), and the device published in No. 4-131675 of the Patent Gazette of Japan (hereinafter referred to as "No. 3 of the invention subject to comparison"), and thus, the newness and inventive step cannot be denied by the publicly notified technology of this case.

However, in light of the fact that the registered garage of this case is in a cooling house in which the freezing and cooling room are isolated vertically by a partition, and air conditioners are installed only in the freezing room, and the heat heat control equipment installed in the freezing is installed in the freezing, and the structure to shut the above radar is being installed in accordance with the result of reducing the indoor temperature of the cooling room, and the ice is mainly in the freezing room, and even if the outer part of the radar is installed outside the freezing, it is hard to find out any more than the time more than the time more than the time it is open, it cannot be seen that there is any circumstance to eliminate the outer part of the open space than the registration framework of this case, even if the non-obviousness of the open space becomes more efficient through the installation of the heat control equipment in the open space or in the open space.

Therefore, the judgment of the court below is not erroneous in the violation of the rules of evidence or misapprehension of legal principles.

2. As to the third ground for appeal

According to the records, the plaintiff's attorney stated to the effect that the heat line is installed in the display, as well as the products produced by SCD at the date of pleading of the court below. Thus, as long as the plaintiff's attorney's aforementioned statement and the whole purport of pleading are sufficient to recognize the same facts, there is no violation of the rules of evidence in the court below.

3. As to the fourth ground for appeal

Article 5(1) of the former Utility Model Act (amended by Act No. 6412, Feb. 3, 2001; hereinafter the same) provides that any device described in a device publicly known or publicly worked in the Republic of Korea prior to the filing of utility model registration (No. 1) and a publication published domestically or overseas prior to the filing of utility model registration (No. 2); and Article 5(2) of the former Utility Model Act provides that any device easily designed by a person with ordinary knowledge in the art to which the device pertains shall not be granted a utility model registration, unless there are special circumstances, shall be deemed to have been new and non-obviousness of the device described in the specification attached to the application for utility model registration pursuant to Article 9(2) of the same Act. Therefore, in cases where the previous technology is described in the specification attached to the application for utility model registration, the previous technology shall be deemed to have been listed in each subparagraph of Article 5(1) of the same Act in determining whether the newness or non-obviousness of the device claimed in the application for utility model registration is denied.

According to the reasoning of the judgment below, the court below held that the device described in the specification of the registered petition shall not be used as evidence of denial of newness or inventive step, unless it is clearly stated in the specification that the device described in the specification of the registered petition shall be deemed an known art known to many unspecified persons prior to the application, and it shall not be used as evidence of denial of inventive step, on the ground that the device described in the specification of the registered petition of this case shall not be deemed a device described in the specification of the registered petition of this case as an known art prior to the application of this case, unless it is clearly stated that the device described in the specification of the registered petition of this case is an known art prior to the application of this case. In light of the above legal principles, the court below determined the inventive step of the registered petition of this case, without regard to the device described in the specification of the registered petition of this case as an known art in the specification of the registered petition of this case.

However, since the device described in the specification of the instant registered device is the same as the structure of omitting some composition in the comparable device 2. Thus, as long as the inventive step is not denied by any other comparable device including the comparable device 2, the instant registered device, even if it treats the device described in the previous technology as one of the devices stipulated in each subparagraph of Article 5(1) of the former Utility Model Act, is not denied, the instant registered device still remains non-obviousness. Accordingly, the judgment of the court below is just in its conclusion and the ground of appeal No. 4 is without merit.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Kang-tae (Presiding Justice)