[1] Whether a court’s determination of legal requirements that a party did not assert in a lawsuit seeking revocation of a trial decision is contrary to the principle of pleading (affirmative)

[2] The case holding that the court below erred in the misapprehension of the principle of pleading on the ground that the registered design constitutes a design similar to the comparative design, and thus, there was no ground for invalidation of the registration under Article 5 (1) 3 of the Design Protection Act, even though the parties merely asserted that the registered design does not constitute a design that could be easily created from the comparative design, etc. as a ground for illegality in the trial decision, in the lawsuit of revocation of the trial decision rendered by the Intellectual Property Tribunal that invalidated the registration of the registered design as to the "act in spact", the registered design constitutes a design similar to the comparative design, and there

[1] Even if the principle of ex officio is still based on the principle of pleading even though a lawsuit seeking revocation of a trial decision, which is a kind of administrative litigation, is still based on the principle of pleading, the person who seeks revocation shall first claim the specific facts that constitute an illegal cause except the ex officio examination when the person files a claim for revocation on the grounds of illegality of the trial decision. Therefore, the court’s determination on the legal requirements that the parties did not assert

[2] The case holding that the court below erred in the misapprehension of the principle of pleading in holding that the registered design falls under a design similar to the comparable design without any determination as to the ground that the registered design as to the "spact" constitutes a design that can be easily created from the comparable design publicly known in the Republic of Korea prior to the filing of the application, even though the parties asserted that there is no ground for invalidation of registration under Article 5 (2) of the Design Protection Act, since the registered design as a ground for illegality in the trial decision does not constitute a design that can be easily created from the comparative design, etc. as a ground for invalidation of registration under Article 5 (1) 3 of the Design Protection Act, on the ground that the registered design is similar to the design for which the parties did not assert.

[1] Articles 8(2) and 26 of the Administrative Litigation Act, Article 203 of the Civil Procedure Act / [2] Articles 8(2) and 26 of the Administrative Litigation Act, Article 203 of the Civil Procedure Act, Article 5(1)3 and 5(2) of the Design Protection Act

[1] Supreme Court Decision 98Du2768 delivered on March 23, 2000 (Gong2000Sang, 1067) Supreme Court Decision 2001Hu1655 Delivered on August 19, 2003

Amateur Co., Ltd. (Patent Firm C.S., Patent Attorney Ba-won et al., Counsel for the plaintiff-appellant)

Defendant (Patent Attorney Lee Jae-soo et al., Counsel for the defendant-appellant)

Patent Court Decision 2010Heo6430 Decided November 19, 2010

The judgment below is reversed, and the case is remanded to the Patent Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Even if there is no ex officio principle in a lawsuit seeking revocation of a trial decision, which is a kind of administrative litigation, as long as the principle of pleading is still based on the structure of the principle of pleading, the person who seeks revocation shall first claim the specific facts constituting an illegal reason except for the matters to be examined ex officio (see, e.g., Supreme Court Decisions 98Du2768, Mar. 23, 2000; 2001Hu1655, Aug. 19, 2003). Therefore, it is against the principle of pleading to determine the legal requirements in which the party did not assert.

In light of the records, on July 30, 2010, the Korean Intellectual Property Tribunal rendered a trial ruling invalidating the registration on the ground that the registered design of this case (registration No. 511304) was easily created from the comparative design or the registered design under Article 5(2) of the Design Protection Act, which was publicly notified in the Republic of Korea prior to the filing of the application, because the registered design of this case constitutes a design that could be easily created from the comparative design or the registered design under Article 212962 of the same Act, and the plaintiff is not a design that could easily be created from the comparative design, etc. in the trial proceeding, which is the illegality of the trial decision of this case, and thus, the plaintiff only asserted that the registered design of this case does not have any ground for invalidation of registration under Article 5(2) of the same Act, and further, the defendant also asserted that the ground for invalidation of registration under Article 5(2) of the same Act exists as the ground for legitimate conclusion of the trial decision of this case, and there is no ground for invalidation of registration under Article 5(1)3).

Nevertheless, without any determination as to whether the registered design of this case constitutes a design that can be easily created from the comparative design, etc., the court below determined that the registered design of this case constitutes a design similar to the comparative design and thus the ground for invalidation of registration under Article 5 (1) 3 of the Design Protection Act exists on the basis that the parties did not assert. According to the aforementioned legal principles, the court below erred in the misapprehension of the principle of pleading, which affected the conclusion of the judgment, and the ground for appeal

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)