[1] The meaning of "designs" as stated in the publication under Article 5 (1) 2 of the former Utility Model Act

[2] The case reversing the court below's decision that invalidated the registered petition on the ground that a publication containing only the external photograph of the device is a publication under Article 5 (1) 2 of the former Utility Model Act

[1] The device described in the publication under Article 5 (1) 2 of the former Utility Model Act (amended by Act No. 4209 of Jan. 13, 190) refers to the device described in the publication, i.e., the content of which is so stated that a person with ordinary knowledge in the art can easily implement the device. Thus, in order for the device to be described in the publication, at least, what composition a device has should be presented. Therefore, in case where only an internal image is published, the device shall not be described.

[2] In determining whether a registered complaint is a device described in a publication under Article 5 (1) 2 of the former Utility Model Act (amended by Act No. 4209 of Jan. 13, 1990), the case reversing the court below's decision that invalidated the registered complaint on the ground that it is impossible to compare the registered complaint and the cited complaint with its purpose, technical composition, and operating effect because it is not possible to conclude that the registered complaint is a device listed in the publication under the above Article 5 (1) 2 of the former Utility Model Act (amended by Act No. 4209 of Jan. 13, 1990), since it is not possible to conclude that it is a device listed in the publication under the above Article 5 (1) 2 of the former Utility Model Act

[1] Article 5 (1) 2 (see current Article 4 (1) 2) of the former Utility Model Act (amended by Act No. 4209, Jan. 13, 1990) / [2] Article 5 (1) 2 (see current Article 4 (1) 2) of the former Utility Model Act (amended by Act No. 4209, Jan. 13, 1990)

An anti-saturic stock company

Kukdong and Rik resin

Appellant (Patent Attorney Lee Byung-il, Counsel for defendant-appellant)

Korean Intellectual Property Trial Office Decision 94Ra272 dated January 30, 1997

The decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property Office.

The grounds of appeal are examined.

1. 원심심결 이유에 의하면 원심은 1990. 2. 22. 출원하여 1993. 7. 24. 실용신안등록번호 (등록번호 생략)로 등록된 "쓰레기 처리통"에 관한 이 사건 등록고안과 일본의 삼갑 주식회사가 1986. 10. 1. 발행한 카탈로그(갑 제4호증)에 표현된 "190형 BMコンポスタ 제품"(이하 인용고안이라 한다)의 실물사진(갑 제4호증의 1)을 대비하면서 이 사건 등록고안은 부패 가능한 쓰레기를 한 곳에 모아 부패시킬 수 있도록 구성한 쓰레기 처리통으로 부패 과정에서 발생하는 악취나 벌레가 처리통 외부로 나오지 못하게 한 것으로서, 처리통의 밑면은 개방되고 상면은 내향돌재(1a­실용신안공보상의 도면 부호임, 이하 같다)를 형성하여 그 중심부에 투입구(2)를 만들며, 투입구를 덮는 뚜껑의 내부에는 내향돌재(5)를 형성하여 뚜껑이 투입구에 밀착되게 덮이게 하고 처리통의 상부 내주연(내주연)에는 벌레 외출방지벽(외출방지벽, 3)을 설치한 것이나, 갑 제4호증의 1을 보면 인용고안에도 이 사건 등록고안에서의 내향돌재(1a)와 벌레외출방지벽(3), 그리고 뚜껑에 형성된 내향돌재(5)와 같은 것이 있음을 알 수 있으므로, 이 사건 등록고안과 인용고안은 그 기술구성이 동일하고 당연한 결과로 그 작용효과 역시 동일하다 하여 이 사건 등록고안을 구 실용신안법(1990. 1. 13. 법률 제4209호로 전문 개정되기 전의 것) 제19조 제1항 제1호, 제5조 제1항 제2호에 의하여 무효라고 판단한 초심결을 정당하다고 하였다.

2. The device described in a publication under Article 5 (1) 2 of the former Utility Model Act refers to the device described in the publication, i.e., the content of which is described so that a person with ordinary knowledge in the art concerned can easily implement the device. Thus, in order for the device to be described in the publication, at least, what composition the device has should be presented, and therefore, in case where only the external photograph is published with respect to the device with internal characteristics, the device shall not be described.

3. According to the records, Gap evidence Nos. 4 (Kathrog), in light of its form and content, etc., shall be a publication provided for in the above Article of the Act. However, since Gap evidence Nos. 4-1 (actual photograph) is a document separate from Gap evidence No. 4, it shall not be a publication provided for in the above Article of the Act. Thus, in judging whether the registered petition of this case is a device recorded in the publication provided for in the above Article of the Act, the registered petition of this case and Gap evidence No. 4 shall be prepared. Thus, Gap evidence No. 4 shall be inserted only in a photograph taken outside the cited petition, and it is impossible to compare the registered petition of this case and the cited petition of this case with its purpose, technical composition, and effect, since it does not contain any description of its name, purpose, structure, and effect.

Therefore, although the registered complaint of this case cannot be concluded as a device listed in the publication under the above Article of this Act, the court below did not review whether Gap evidence 4-1 corresponds to the publication under the above Article of this Act, and judged that the registered complaint of this case is a device listed in the publication under Article 5 (1) 2 of the former Utility Model Act and the registration is null and void on the ground of this, and there is an error in the misapprehension of legal principles as to the device listed in the publication under Article 5 (1) 2 of the former Utility Model Act, or in the misapprehension of facts against the rules of evidence, which affected the decision of the court. The ground of appeal pointing this out is with merit.

Therefore, the decision of the court below is reversed, and the case is remanded to the Appeal Trial Office of the Korean Intellectual Property Office for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Seo Sung-sung (Presiding Justice)