Sammaco Co., Ltd. (Law Firm Daejeon, Law Office, Attorney Su Jae-chul et al., Counsel for the plaintiff-appellant)

Bawa (Attorney Han-hee et al., Counsel for defendant-appellant)

July 21, 2005

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on October 4, 2004 on the case No. 2003Da2689 shall be revoked.

1. Details of the instant trial decision

A. On December 12, 2003, the defendant claimed a judgment on December 12, 2003 against the above Switzerland to confirm the scope of the right of the patented invention since the patent on the "boomed food package and package drinking drinking food" (hereinafter "patent invention in this case") of Switzerland was publicly announced prior to its application, and the defendant's invention on the "booming food package" (hereinafter "patent subject to confirmation") can easily be seen from prior art, and the patent invention in this case is different from the patent invention in this case, and thus, it did not fall under the scope of the right of the patented invention in this case. The plaintiff participated in the defendant's supplementary participation in the trial as the exclusive licensee of the patented invention in this case.

B. On October 4, 2004, the Korean Intellectual Property Trial and Appeal Board held that the patented invention of this case was publicly notified prior to the filing of the application or that the challenged invention of this case constitutes a free-to-work technology. However, the challenged invention of this case did not fall under the scope of the right to the patented invention of this case on the ground that the composition of both the patented invention of this case and both sides are different and there is a difference in the effect of action.

C. Details of the patented invention of this case and the challenged invention

(1) Details of the instant patent invention

(1) Invention name: Packaginged rice boom and boomed rice.

(2) Date of application/registration date/registration number: October 28, 1993/Sgd. 23, 1997/No. 118731 of July 23, 1997

(3) A patentee: Skimaco.

(4) Exclusive licensee: Plaintiff (registration of establishment of exclusive license on September 14, 2001).

(5) Claims and drawings of a patented invention: Attached Form 1.

(2) Details of the challenged invention

The invention subject to confirmation is an invention related to "mebed packing", and its summary is as shown in attached Form 2.

[Evidence] Each entry of Gap evidence Nos. 1 through 4, the purport of the whole pleadings

2. Whether the trial decision of this case is legitimate

A. Summary of the grounds for revoking the trial decision of the plaintiff's assertion

(1) In the instant trial proceeding, the lower court, who represented the Defendant as the petitioner, is a patent attorney belonging to the Han Young-gu Patent Law Firm, the respondent, and thus, the Han Young-gu Patent Law Firm was the representative of both the claimant and the respondent in the instant trial proceeding, and thus, the instant trial decision is unlawful as a trial decision based on the act of unauthorized Representation by a person without the power of attorney.

(2) Although the patented invention of this case and the challenged invention of this case are identical to the purpose and effect, there is a little difference between the beauty exploitation part of the patented invention of this case and the beauty exploitation part of the challenged invention of this case (51) and the beauty exploitation part of the challenged invention of this case (80) intend to prevent the beauty transformation of the art of this case, prevent the string of the string part of the string part, and facilitate the transfer process of the string part in the automatic transfer process. Thus, the decision of this case is unlawful, provided that the challenged invention of this case and the beauty exploitation part of the challenged invention of this case are equal in the composition of the patented invention of this case because the composition of both inventions is different even though the invention of this case falls under the scope of the right to the patented invention of this case, so the invention of this case

B. Determination

(1) Whether the act of acting on behalf of both parties constitutes the act of acting on behalf of both parties

According to Article 7 of the Patent Attorney Act, a patent attorney shall not provide services to a case handled as an agent for other party. In light of the legislative purport of the above provision, it shall also be prohibited that the same patent attorney is appointed as an agent for the appellant in the same trial proceeding and in the course of performing his duties as an agent for other party in the procedure. This provision shall also apply mutatis mutandis to a patent firm in accordance with Article 6-10 of the Patent Attorney Act. Thus, even though an associate patent attorney of a patent firm was appointed as an agent for the claimant in the trial proceeding and performed his duties as an agent for the other party in the same procedure, it shall also be prohibited that a patent firm performs its duties as an agent

Therefore, according to the evidence Nos. 14-1, 14-2, and 15, an attorney-at-law is marked as a member of the Internet homepage of the Hanyang Patent Corporation. Under Article 6-4 (2) of the Patent Act, an attorney-at-law in English on the top of the bulletin board of the Ha Young-ju Office's office's office's office's "HNG" is indicated below, and under the above, an attorney-at-law's office's "tegian" is indicated below. However, under Article 6-3 of the Patent Attorney Act, an attorney-at-law can establish a corporation consisting of five or more patent attorneys. Under Article 6-3 of the Patent Attorney Act, a patent attorney-at-law must prepare the articles of incorporation stating the name and address of its members and obtain authorization from the Commissioner of the Korean Intellectual Property Office. According to the above Article 6-4 (2) of the Patent Attorney Act, a patent attorney-at-Law shall be registered and reported without delay to the Commissioner of the Korean Intellectual Property Office and the Korean Intellectual Property Office.

In regard to this, the Plaintiff indicated on the homepage and signboard of the Hanyang Patent Corporation as if he was a patent attorney belonging to the Hanyang Patent Corporation, and in light of the fact that the Kim Jong-ok, a patent attorney belonging to the Hanyang Patent Corporation, represents for the patent application of this case on behalf of the patent attorney who is the patentee of the patent invention of this case and is registered as the patent administrator of the patent right, the Plaintiff, in fact, requested Ha Yang-ok, a patent attorney operating the law office, to request the confirmation of the scope of the patent right of this case on behalf of the defendant, and the Han-yang Patent Corporation, claiming that the above adjudication procedure was in progress on behalf of the defendant on behalf of the defendant, and thus, it is in fact alleged that the defendant's agent was in fact acting on the Internet homepage and signboard of the Hanyang Patent Corporation, and therefore, the fact that the defendant's agent was indicating that the defendant's patent attorney's patent attorney's act was not a patent attorney's agent, the defendant's patent attorney's agent or the defendant's agent's agent's agent's patent attorney's patent attorney's act of this case cannot be seen.

B. Whether the challenged invention falls under the scope of the right to the patented invention of this case

(1) Preparation for the instant Claim 1 invention and the challenged invention

㈎ 목적 대비

The purpose of the patented invention of this case is to prevent crypt transformation and provide crybling crying and packing crying cryping crying cryping cryping cryping cryping cryping cryping cryping cryping cryping cryping cryping cryping cryping cryping cryping cryping cryping cryping cryping cryping cryping cryping cryping (60,70) cryping cryping cryping cryping cryping (5) cryping cryping (51) cryping cryping from the inside of the cryp which accommodates cryping food to the outside, but it differs from the purpose of the patented invention of this case.

㈏ 구성의 대비

① The component of the Claim 1 invention of this case, “one side of both internal films (2) and (2) shall be opened at the edge of each side of external films (1) of this case, each of which shall be opened in accordance with the direction of length of external films (2), and one side of the inside films (1) of this case, shall be opened at the approximate center of the breadth direction of the external diameter (1), and the direction side of the above internal films (2), (1) as well as (2) shall be opened, and the body side of the internal films (10) of this case shall be opened at the parallel of internal films (20) of this case, and the body side of the same kind of internal films (20) shall be composed of two external films (10) and two parallels of internal films (20) of this case, and the composition of two parallels of internal films (10) and two parallels of internal films (20) of this case shall be as follows.

② Two of the elements of Claim 1 invention of this case, "the composition consisting of a group of cosmetic exploitation parts (51) connected to the outside from the inside of the sets which accommodates food in the form of vision to the outside," and "the group of cosmetic exploitation parts (40,50) formed from the outside film and internal film to the outside, and the group of cosmetic exploitation (80) formed from the outside part of the invention of this case. The two parts of the invention of this case are composed of two parts of the invention of this case, "the group of cosmetic exploitation parts (80) formed only from the outside side of the contact part to the middle part, and not connected to the inside and outside of the set." While the two parts of the invention of this case are identical to the group of cosmetic exploitation parts composed of a large number of parts of cosmetic exploitation of the outer film and the outer length direction of the internal film to the outside (40,50) of the invention of this case to the outside part of the invention of this case, the two parts are not connected to the outside part of 50, and the outer part (500) of the invention of this case.

As to this, the Plaintiff’s assertion that cosmetic 1 and cosmetic 5 are to prevent the internal combustion of the cosmetic 1 and to ensure the smooth transfer of the cosmetic 1 from the automatic transmission process, and that the composition of the invention is equal to that of the instant cosmetic 2 and 3, the detailed description of the invention under paragraph (1) of this case can not be accepted as a whole, because it is 60 square meters out of the upper part of the cosmetic 1220,000, 6622,202,202,202,202,202,200,000,0000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00).

The plaintiff asserts that both sides of the invention in question are substantially identical to the composition of the air of both sides (40, 50). Thus, the statement of invention in question is opened to 1 pair internal film (20) at the center of the width of the film (10) and the corresponding side of external film (20) at the upper end of the upper end of the upper end of the film (10) and the corresponding side of the upper end of the film (20), respectively, are opened to the upper end of the upper end of the film (40, 50) on both sides of the above external film and the inner film (40, 50) on the condition that it is not identical to the upper end of the upper end of the 6-day system, and that it is not identical to the upper end of the 5-day system, and that it is not identical to the upper end of the 5-day system, and that the upper end part of the 5-day system is composed of jutecing and upper end of the 50-day system.

나아가 원고는, 갑 제5호증에 의하면 피고가 판매하는 삼각김밥에 사용된 주먹밥포장시트의 좌우측면 접합부 사이에서 공기가 배출되고 있으므로 확인대상발명의 양 측면에는 내부와 외부가 연통된 공기통로가 구비하고 있다고 주장하나, 소극적 권리범위확인심판에 있어서 특허발명과 대비하여 권리범위에 속하는지 여부의 판단대상이 되는 확인대상발명은 그 설명서 및 도면에 게재된 발명이며, 설사 피고가 실시하고 있는 발명이 확인대상발명과 일치하지 않는다 하더라도 확인대상발명의 실시가능성이 전혀 없지 않는 이상 소극적 권리범위확인심판의 대상은 심판청구인인 피고가 특정한 확인대상발명이라 할 것이어서, 피고가 실제 판매하는 제품을 확인대상발명으로 보고 확인대상발명은 좌우측면 접합부가 공기가 통하는 것이라는 원고의 위 주장은 이유 없다(또한, 갑 제5호증, 을 제1호증의 각 기재에 의하면, 원고가 확인대상발명의 실시제품에 대하여 한 ‘레드체크 침투 탐상법’은 금속 또는 콘크리트 중의 극미세한 크랙에 검사액을 모세관 현상에 의해 침투시키는 방법으로, 침투시간은 15℃～40℃의 범위로 5～20분을 기준으로 하는데, 15℃ 이내 및 미세결함에는 2배 이상의 침투시간을 요하는 사실이 인정되는바, 위 인정사실과 오늘날 삼각김밥을 만드는 방법은 자동화된 기계로 이루어지는 점을 종합하여 보면, 위 ‘레드체크 침투 탐상법’은 이 사건 확인대상발명의 대상인 주먹밥 포장시트의 룰렛 열롤러 시일의 열용착에 의한 양측 접합부에서 삼각김밥을 포장할 때 공기가 배출되는지 여부를 판단하는데 있어 적절한 실험방법이라고는 볼 수 없다 할 것이다).

㈐ 작용효과의 대비

The invention of Paragraph 1 of this case is effective to prevent the crypt from emitting the shape of the crypt by a heat-melting joints at the right side of the drinking breab, and aground from the internal films of the crypt so that the air remaining between the external films of the crypt and the internal films would be smoothly discharged on the internal films of the crypt. The invention of this case is formed by a beauty-type (80) that does not connected with the inside and outside of the crypt, and is effective to prevent the transformation of the crypt by a heat-melting joints (80). However, since the cry-type (80) form only the middle part of the crypting joints (40,50) on both sides, it can not be discharged through both sides of the external films and internal films (40,50). Thus, it is distinguishable from the internal films of paragraph 1 of this case from the external films of the invention of this case.

(2) Preparation for the instant Claim 2 invention and the challenged invention

Inasmuch as the instant Claim 2 invention pertains to “booming rice,” the subject of the instant Claim 1 invention is somewhat different from the subject of the instant Claim 2 invention, however, the composition of the instant Claim 2 invention is composed of “three-three-three-three-three-three-three-three-three-three-three(4)-three(4)-three-three(4)-three(4)-three(4)-three(4)-three(4), so the instant Claim 2 invention has the characteristics of the instant Claim 1 invention. Therefore, insofar as the instant Claim 1 invention differs from the composition and effect of the instant Claim 2 invention, the composition and effect of the instant Claim 2 invention are different.

C. Sub-committee

The invention subject to confirmation is different from the patented invention of this case, and its function effects are different from those of the patented invention of this case due to the difference in its composition, and it does not belong to the scope of the right of the patented invention of this case, and the decision of this case is justified.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the trial decision of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Park Dong-dong (Presiding Judge)