A. The case holding that, after the Supreme Court's remanding, the original decision of the Korean Intellectual Property Office was rendered the same conclusion as the result of the original judgment before remanding, it is justifiable on the ground that it was based on the grounds for reversal of the judgment of remanding, which was not determined in the original decision or the judgment

B. Whether the judgment on the reversal and return of the principle against double Jeopardy is applicable (negative)

(c) Whether the scope of the right of combining the respondent’s registered design and similar design, in a case where (a) the registered similar design as the basic design and the design of the respondent, which were publicly known prior to the filing of the respondent’s application, can be easily created by combining the shapes publicly known prior to the filing of the application, is similar to the design under subparagraph (a) (negative).

A. The reason for the reversal of the judgment of remanding the Supreme Court is similar to the registered basic design and the design of (a) and (a) together with the other similar design, but the original judgment before remanding was judged not to be similar to the other design of (a) and (b) without comparing the other design of (a) with the other design of (a). The reason for the original judgment after remanding the case is as a whole similar to the other design of the registered design, but the other design of (a) and (a) are similar to the other design of the registered petitioner, and thus the scope of the registered design right cannot be attributed to the design of (a) because the other design of the registered petitioner is similar to the registered design, the decision of the court below after remanding the case is in accordance with the reason for reversal of the judgment of remand, and there is no error of law by misapprehending the legal principles on the binding force of the judgment of remanding the case after remanding the case, since the original judgment was accepted by the claimant who was not judged in the original judgment or the judgment of remand before remanding the case.

B. The principle of res judicata under Article 147 of the former Patent Act (amended by Act No. 4208 of Jan. 13, 1990), which is applicable mutatis mutandis under Article 56 of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990), is applicable to cases where a trial decision, trial, or judgment becomes final and conclusive, or is not applicable to a final and conclusive judgment for reversal or return.

C. A design right is granted to a new design, so even if the design registration was made upon application including the reason for public notice, it cannot be granted the exclusive and exclusive right to the common area for public use. Accordingly, even if the design registration was made upon application including the reason for public notice, the design (a) and (a) that was publicly notified before the respondent's application for a registered design is similar, while a similar design registered with the respondent's registered design as a basic design is similar to the above prior registration and (a) design as a whole, and if the registered design can be easily created by combination of shapes publicly notified before the application, the scope of the right cannot affect the design (a) even if the design is similar to the registered design of the respondent by combining the shapes similar to the registered design of the respondent.

A. B. Articles 56, 5, and 6 of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990), Articles 75, 5, and 7 of the Design Act (amended by Act No. 4207 of Jan. 13, 1990), Article 144(2)b of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990), Article 163 of the Patent Act

A.B. (C) Supreme Court Decision 90Hu1130 Decided June 28, 1991 (Gong190, 237). Supreme Court Decision 89Hu25 Decided August 8, 1989 (Gong1989, 1365). Supreme Court Decision 84Hu61 Decided March 12, 1985 (Gong1985, 733), Supreme Court Decision 88Da560 Decided April 9, 1990 (Gong190, 1237), Supreme Court en banc Decision 85Hu129 Decided September 9, 1986 (Gong1309, 1309, 1309), Supreme Court Decision 84Hu196385 Decided 1968, 1983, 1984 (Gong1986, 1309, 1309).

[Defendant-Appellant] Plaintiff 1 and 2 others, Counsel for defendant-appellant

Attorney Park Jong-jin et al., Counsel for the defendant-appellant

Korean Intellectual Property Office Appeal Trial Office 190 May 30, 1990, 86 Doz.239

The appeal is dismissed.

Costs of appeal shall be borne by the person who has been requested for adjudication.

As to the Grounds of Appeal

1. The binding force of the judgment remanded to the Korean Intellectual Property Office lies only in the passive aspect that the original decision of the court below, which is the reason for reversal, is unreasonable. Thus, the original decision after remanding, can conclude the same conclusion as the result of the original decision before remanding by another possible opinion (see Supreme Court Decision 84Hu83, Apr. 9, 1985; Supreme Court Decision 88Da5560, May 8, 1990). The reason for reversal of the original decision after remanding party members of the case, is to combine with the original design right upon the registration of the similar design and to secure the scope of rights by clearly clarifying the conceptual similar scope of the basic design at least when the similar design is registered. According to the evidence No. 6, a similar design registration that points out the registered design of this case as the basis for reversal, is similar to the above registered design right, and if the registered design is remanded to the court below without any errors in the misapprehension of the legal principles as to the original design right and the registered design right (see, e.g., Supreme Court Decision 20007Da148888).

In addition, Article 147 of the former Patent Act (amended by Act No. 4208 of Jan. 13, 1990), which is applicable mutatis mutandis under Article 56 of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990), is applicable to cases where a trial decision, trial, or judgment becomes final and conclusive, or is not applicable to a final and conclusive judgment for reversal or return, and thus, it cannot be deemed that there was an error in violation of the principle of res judicata in the original trial decision. The argument is without merit.

2. Since a design right is granted to a new design, even if a design is registered upon an application including the reason for public notice, the right to exclusively use and exclusively use the publicly known section shall not be recognized (Supreme Court en banc Decision 81Hu56 Decided July 26, 1983, Supreme Court Decision 85Hu14 Decided September 8, 1987, Supreme Court Decision 89Hu186 Decided February 9, 190).

피청구인의 이 사건 등록의장 출원 전에 공지된 선등록의장 (갑3호증 : 의장권은 기간만료로 소멸됨)과 (가)호 의장을 대비해 보면 두 의장은 챈널형의 상부지지구, 원추대형의 중간탄성체, 원형의 하부지지판의 형상이 유사하고 상부지지구와 중간탄성체를 볼트와 너트로 연결하여 높이를 조절할 수 있게 되어 있는 점이 같을 뿐 아니라 이를 이용하여 높이를 낮추었을 때와 높였을 때의 전체적인 미감이 극히 유사하고, 한편 피청구인의 유사의장은 그 출원 전에 공지된 위 선등록의장 및 (가)호 의장과 전체적으로 유사하며, 이 사건 등록의장도 그 출원 전에 공지된 형상(갑 9호증, 갑13호증 참조)의 결합에 의해 용이하게 창작할 수 있는 것으로 보인다.

Therefore, even if (a) the design of the case is similar to the design of the respondent, even if the design of the case is similar to the design of the respondent, the scope of the right cannot affect the design of the case.

Although it is somewhat insufficient at the time of the explanation of the reasoning of the original adjudication, the conclusion that the Speaker does not belong to the scope of the right of the registered design of this case is justified, and therefore, it is not reasonable to discuss that the Speaker erred in the misapprehension of legal principles as to the determination of negligence, incomplete hearing, or omission of the determination

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

Justices Yoon Young-young (Presiding Justice)