[1] The purport of the latter part of Article 4 subparag. 2 of the former Patent Act stipulating “the invention of a method to manufacture a single medicine by mixing two or more medicines” as the grounds for non-patent

[2] Method of determining the scope of a patent right or actual scope of protection

[3] Whether an act of production, sale, etc. is permitted freely if the subject matter falls under "a medicine" under Article 4 (2) of the former Patent Act (negative)

[4] The purport of Article 64 of the former Patent Act

[5] In the case where multiple substances are chemically reconvened to manufacture a target substance, and the reaction is also made of the same target substance by adding another substance more, the burden of proof of the reaction route in relation to the patent for the method of manufacturing the target substance

[6] The case holding that the invention in question falls under the scope of the patent right of the patented invention as to "the manufacturing method of the distribution method of the urier lives and radioactive metal lives"

[1] The purport of the latter part of Article 4 subparagraph 2 of the former Patent Act (amended by Act No. 3891 of Dec. 31, 1986) which provides for "the invention of a method to manufacture one's medicine by mixing two or more medicines" as the grounds for non-patenting is that the preparation of one's medicine by mixing two or more medicines constitutes medical treatment by medical personnel. As such, any person who prepares one's medicine by mixing two or more medicines for the purpose of national welfare should not have exclusive rights to prepare medicines for the purpose of national welfare, resulting in a doctor's treatment performed according to the patient's condition or a pharmacist's freedom to prepare medicines by prescriptions by doctors or dentists.

[2] In principle, the scope of a patent right or the substantial scope of protection shall be determined by the claims described in the specification accompanying the patent application. However, if the technical composition of the patent is unknown or it is impossible to determine the technical scope even if the description alone is known, the supplement may be made by another description in the specification. In this case, the extended interpretation of the claims is not allowed by another description in the specification, as well as when the technical scope is apparent solely based on the description in the specification, the limitation on the description in the claims cannot be interpreted by another description in the specification.

[3] Article 4 subparagraph 2 of the former Patent Act (amended by Act No. 3891 of Dec. 31, 1986) provides that "the invention of a method for manufacturing a medicine by mixing the medicine with two or more medicines" as one of the passive requirements that anyone is unable to obtain a patent, and does not provide that the invention shall be carried out freely, and that the patent shall not have the effect on the invention. Article 46 of the same Act does not separately provide for the invention that meets the above passive requirements. In light of the fact that Article 4 of the same Act (amended by Act No. 3891 of Dec. 31, 1986) provides that "the invention of a method for manufacturing a medicine by mixing the medicine or one or more medicines, and does not allow the act of manufacturing, selling, etc. the medicine to be freely permitted only if the subject matter is a medicine.

[4] Since indirect infringement under Article 64 of the former Patent Act (amended by Act No. 3891 of Dec. 31, 1986) does not meet the elements of a patent invention, direct infringement is not yet established, but with respect to an act that inevitably leads to direct infringement in the future, it shall be regarded as infringement in order to enhance the invalidation of the exclusion of direct infringement in the future.

[5] In relation to a patent for a method of manufacturing a target substance by chemical reactioning multiple substances, if the reaction is also made by adding another substance to the same target substance, if it exceeds the scope of the existing patent right, it must prove that the reaction route would be different from that of the patent right by adding the other substance to the degree that the reaction route would be different from that of the patent right.

[6] The case holding that the scope of right cannot be denied on the ground that the invention subject to confirmation falls under the "an invention of a method to manufacture one medicine by mixing two or more medicine", which is one of the grounds for non-patent under Article 4 subparagraph 2 of the former Patent Act (amended by Act No. 3891 of Dec. 31, 1986), or "the method to manufacture one medicine by mixing two or more medicine", and that the invention subject to confirmation falls under the "an invention of a method to manufacture one medicine by mixing two or more medicine," which is one of the grounds for non-patent, or that the method to use the invention subject to confirmation falls under the "an invention of a method to manufacture one medicine by mixing two or more medicine," which is one of the grounds for non-patent, and that the invention subject to confirmation does not fall under the scope of right of the patented invention, and furthermore, since the invention subject to confirmation is an invention used exclusively for the working of the manufacturing method of the patented invention.

[1] Article 4 subparagraph 2 of the former Patent Act (amended by Act No. 3891 of Dec. 31, 1986), Article 4 subparagraph 2 of the former Patent Act (amended by Act No. 3891 of Dec. 31, 1986) / [2] Article 57 and Article 97 of the former Patent Act (amended by Act No. 3891 of Dec. 31, 1986) / [3] Article 4 subparagraph 2 of the former Patent Act (amended by Act No. 3891 of Dec. 31, 1986), Article 4 subparagraph 2 and Article 64 subparagraph 2 of the former Patent Act (amended by Act No. 3891 of Dec. 31, 1986) / [4] Article 64 subparagraph 2 of the former Patent Act (amended by Act No. 3891 of Dec. 31, 198), Article 14 subparagraph 2 of the former Patent Act (amended by Act No. 197 subparagraph 1 of the former Patent Act) / [see Article 17 subparagraph 198

[2] Supreme Court Decision 91Hu1809 delivered on June 23, 1992 (Gong1992, 2279) Supreme Court Decision 91Hu1908 delivered on October 12, 1993 (Gong1993Ha, 3082), Supreme Court Decision 94Hu258 delivered on February 9, 1996 (Gong196Sang, 9555), Supreme Court Decision 95Hu1050 delivered on December 6, 1996 (Gong197Sang, 207), Supreme Court Decision 96Hu118 delivered on May 28, 1997 (Gong197Ha, 1875), Supreme Court Decision 96Hu10308 delivered on April 10, 1998 (Gong1997Ha, 1875).

BriTolu-Mas Squibbre Com (Briol-Myers Squibb Phar Company) (Attorney Jeong Jong-dae et al., Counsel for the plaintiff-appellant)

East Asia Pharmaceutical Co., Ltd. (Patent Attorney Lee Won-hee et al., Counsel for the defendant-appellant)

April 16, 2004

1. The part of the claim(s) of a patent No. 115253 among the trial decisions rendered by the Intellectual Property Tribunal as to the case(s) No. 1669 on April 30, 2002 shall be revoked.

2. The costs of lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

[Evidence: Evidence No. 1, 3, A2, 5]

A. Patent invention of this case

The Plaintiff’s patented invention of this case (registration No. 115253, Aug. 4, 1986, May 16, 1997) pertains to “the method of manufacturing the distribution of e-mail and radioactive metal products” and the scope of the Plaintiff’s patent application is as shown in attached Table 1.

(b) An invention subject to verification;

The invention subject to confirmation is a key (k) in which the defendant produces and sells the invention as a business, and the methods of creation and manufacture are as specified in attached Table 2.

C. Details of the instant trial decision

The defendant filed a claim against the plaintiff for a trial to confirm the scope of the right of the patented invention of this case since the invention subject to confirmation differs from the composition of the patented invention of this case in that it uses the nitry litry litry, instead of the nitry litryde of the patented invention of this case, and its effects are significant. The invention subject to confirmation differs from the composition of the patented invention of this case, its effects are significant. The invention subject to confirmation is a medicine under subparagraph 2 of Article 4 of the former Patent Act (amended by Act No. 3891 of Dec. 31, 1986; hereinafter the same shall apply) and the invention subject to confirmation falls under the non-patent cause, and the Patent Tribunal tried as 201Da1669, Apr. 30, 200, and rendered a trial decision citing the defendant's appeal of this case on the following grounds.

D. Summary of the grounds for the instant trial decision

As to whether the invention subject to confirmation falls under subparagraph 2 of Article 64 of the former Patent Act (act deemed to be infringement) and falls under the scope of the right to the patented invention of this case, the invention of paragraph 1 of this case is a health source and a starting material, while the invention subject to confirmation is using the hythal of the hythal of the hythal of the hythal in the response process of the invention of this case where non-radioactive metal is exchanged with radioactive metal, but there is no special difference between the hythal of the hythal of the hythal of the hyal of the hyal of the invention subject to confirmation and the hyalthal of the hyalthal of the hyalthal of the hyalthal of the invention subject to confirmation, it seems that the hyalthal of the hyalthal of the hyalthal of the hyalthal of the invention

However, in the event that the tekylium is produced by using an invention subject to verification added to Switzerland 1, the reaction process is not to form Switzerland -Sn+2, in response to Switzerland 1, and the tekylium (T+7) is returned to the tekyl (T+1) whose tekylium (Tc+7) is to be restored, and the tekylium (Tc+1) is to be returned to the act of using the invention subject to verification added to Switzerland 1, because the tekylium is not equivalent to the tekyl 1, the tekylium -Tc+1, which is ultimately not equivalent to the tekyl 1, because the tekyl 1, which is not equivalent to the tekyl 1, which is not equivalent to the tekyl 1, because the tekyl techer's license is not equivalent to the tecyl 1, which is not equivalent to the tecyl 1, which is not restored to the invention subject to be returned.

2. The parties' assertion on the legitimacy of the instant trial decision

A. Grounds for revocation of the Plaintiff’s trial decision

(1) As the Switzerland, added to the invention subject to confirmation, has an impact on the preservation of the string of active tin, and does not participate in the reaction to form the radioactive metal attachment of the radioactive metal attachment of the e-radioactive metal base of the e-ray of the ninitrode by reactioning the non-radioactive metal attachment and radioactive metal, the invention subject to confirmation inevitably entails the implementation of the manufacturing method of the patented invention of this case, regardless of the existence of the lucoh acid, and therefore, the invention subject to confirmation falls under the scope of the right to the invention of paragraph (1) of this case under Article 64 (2) of the former Patent Act.

(2) It is a matter entirely separate from the fact that the challenged invention is a medicine subject to non-patent under Article 4 subparag. 2 of the former Patent Act and the act of producing and selling it constitutes an indirect infringement under Article 64 subparag. 2 of the former Patent Act.

(3) In addition, the Plaintiff asserted that the instant petition for trial was against the res judicata effect of the adjudication decision on the invalidation of registration (Evidence No. 1141 of April 30, 2002) rendered by the Intellectual Property Tribunal (No. 1141 of April 30, 2002) on the instant patent invention, which became final and conclusive between the Plaintiff and the Defendant. However, upon examining the evidence, it is obvious that the cause of the claim is different,

B. Defendant’s assertion

(1) The term "radioactive metal" in the patented invention of this case is not only a medicine, but also a medicine that covers all compounds, such as radioactive metal's acids, milks, etc. It is also a medicine that explosives the medicinal effect when used together with radioactive metal, which is a medicine. Therefore, the mixture of radioactive non-radioactive metals's lusium and radioactive metal's lusium constitutes a preparation act conducted in accordance with doctor's prescriptions. Thus, the patented invention of this case constitutes a preparation act under Article 4 subparagraph 2 of the former Patent Act, and its scope of rights cannot be acknowledged regardless of whether the decision on invalidation is rendered.

(2) The invention subject to confirmation is a pharmaceutical product defined as the grounds for non-patent under Article 4 subparagraph 2 of the former Patent Act. An invention constituting the grounds for non-patent, notwithstanding Article 46 (2) of the former Patent Act, does not automatically have the effect of a patent right. Thus, the invention subject to confirmation is widely and freely available to the public, and it does not fall within the scope of the right to the patented invention of this case regardless

(3) Since the method of use of the challenged invention itself constitutes medical practice by a medical person and cannot be established as a right because it falls under the grounds for non-patent under the former Patent Act, the method of use of the challenged invention does not fall under the scope of the right

(4) The Switzerland U.S., added to the invention subject to confirmation, does not fall under the restoration or simple additives, but directly participate in the manufacturing method of radioactive metal distribution by means of forming tin and mercury and tekylene, so the invention subject to confirmation and the patented invention in this case cannot be deemed to be a product used exclusively for the working of the patented invention in this case as long as the reaction route is entirely different from the invention subject to confirmation. The method of using the invention subject to confirmation differs from the manufacturing method and composition of the patented invention in that it includes the Switzerland U.S. as a starting material, and due to the difference, the use of the invention subject to confirmation shows significant technical effects such as the improvement of stability of KIKO and the production ratio of the target material, which cannot be predicted in the patented invention in this case, and therefore, the use of the invention subject to confirmation does not fall under the implementation of manufacturing method of the patented invention in this case, and therefore does not fall under the scope of the right to the patented invention in this case.

3. Determination

A. Whether the patented invention of this case constitutes “the invention of a process to manufacture one medicine by mixing two or more medicines” under Article 4 subparag. 2 of the former Patent Act

(1) Article 4 of the former Patent Act provides that "an invention falling under any of the following subparagraphs shall not be patentable, notwithstanding the provisions of Article 6." The latter part of subparagraph 2 thereof provides that "an invention of a method to manufacture one medicine by mixing two or more medicines". The purport of the provision is to prepare one medicine by mixing two or more medicines as above is that it constitutes medical treatment by a medical personnel. Thus, any person who prepares one medicine by mixing the two or more medicines for the purpose of national welfare does not have exclusive rights as to the above medical person's acts of preparing one medicine by treating the medicines in accordance with the patient's condition, or by treating the doctor or dentist's right as a result, it does not infringe upon the freedom of pharmaceutical doctor's or dentist's acts of preparing one medicine by mixing the two or more medicines."

(2) First, we examine the meaning of “radioactive metal”, one of the starting substances of the instant Claim 1 invention, and whether it constitutes medicine.

(A) The meaning of "radioactive metal"

In principle, with respect to whether the radioactive metal of the instant Claim No. 1 means only the radioactive metal itself, or the meaning of the radioactive metal source including oil and oil compounds including radioactive metal source, etc., the scope of a patent right or the scope of actual protection of a patent right shall be determined by the matters indicated in the claims of the specification attached to the patent application. However, in a case where the technical composition of the patent is unknown or it is impossible to determine the technical scope even if the description alone is unknown or known, the supplement may be made by other statements in the specification. In this case, the expanded interpretation of the claims is not allowed by other statements in the specification, and the limitation of the claims cannot be interpreted by other statements in the specification where the technical scope is evident solely with the description in the claims (see Supreme Court Decision 96Hu118, May 28, 1997).

Upon examining the claims of the instant Claim 1, “radioactive metal” is used three times in total in each stage from the manufacturing process of each stage only, and one stage is “non-radioactive metal is selected from among Cu, Mo, Pd, Core, Ni, Cr, Ag, and Rhs of the tride”, “mix the foregoing non-radioactive metal with radioactive metal”, and the two steps are “the foregoing radioactive metal exchange with radioactive metal”, and the three steps are “the same stage of interpretation as the radioactive material in each stage of interpretation of the radioactive material in the same order as the radioactive material in each stage of interpretation of the radioactive material.”

On this premise, the claim(s) of the instant Claim(s) provides that “non-radioactive metal (non-radioactive metal shall be selected from among Cu, Mo, pd, Co., Ltd, Ni, Cr, Ag and Rh) shall be converted into radioactive metal.” At three phases, “radioactive metal shall be selected from among the groups consisting of radioactive elements of Tc, Ru, Co., Ltd, Pt, Fe,O, Ir, Cr, Mn, Mo, NH, Rhh, Pd, Nb and Ta, and from among the radioactive compounds of the instant Claim(s) that are different from the radioactive compounds of the instant case, “radioactive metal compounds” are not radioactive compounds consisting of radioactive elements of Tc, Ru, Co., Ltd., e., p, e., Fr, r, R, Cr, Mo, MN, R-N, N-N-I and non-radioactive compounds of the instant Claim(s).

The above meaning of the "radioactive metal" in the Claim 1 of this case is about the manufacturing method of the radioactive material to the radioactive material in the detailed description of the specification of the patented invention of this case. This invention also supports, for example, 9mT, 9Tc, 99T, 97R, 51C, 57cc, 188R and 191Os of the radioactive material at the radioactive isotope, such as 9mC, 97R, 51C, 57cc, 188R and 191O. In particular, it is about metal-small additions to manufacture the radioactive material of this case (from 1 to 3rd under the 3th of the evidence 1).

In this regard, the Defendant asserts that, within the claim(s) of the instant Claim(1), the radioactive metal is clearly indicated as “radioactive metal mixtureable from among the luxine non-radioactive metal additives and appropriate solvents,” and that, even in the detailed description of the invention, the non--radioactive metal additives of the luxideide and compounds actually mixed with tecium metal metal (T+1) is not only the tecium metal (T+4-), but also the tecium (TcO4-), TcC-TUs-typhine oil oil oil oil or tecium Hexium Hexium Hexium Hexium (TcO4-), such as tecIII, is indicated as tec+3, Tcc+5 or Tccc+7, and therefore, the radioactive compound(s) of the instant Claim(1) also contains all tecium compounds such as tecium metal compounds and any other tecium compounds.

However, according to the claim(s) of this case, it is necessary to consider that the radioactive materials are mixed with radioactive materials within 1strings, and that the radioactive materials are mixed with radioactive materials within 3strings so that they may not be recovered, so it can not be deemed that the radioactive materials can be mixed with radioactive materials within 9thc or 9mc, and that the radioactive materials can not be mixed with radioactive materials within 1strings. In addition, in the case of 1strings of this case, it is desirable to see that the radioactive materials can be mixed with radioactive materials within 1strings (it shall be returned to teththing teththing tethththing tethths-tething teththing teththing teths-tething teththing teththing teths-tething tething tething tething teths-tething tething tethings.

In addition, the Defendant asserts to the effect that the radioactive metal of the instant Claim No. 1 is “those selected from among groups consisting of radioactive isotopes,” while the pharmacological effect of radioactive drugs is used by radioactive isotopes in the process of converting radioactive isotopes into other metal sources while radioactive isotopes emissions radiation, so chemical structure formula in radioactive drugs cannot be characterized, and chemical structure formula in radioactive drugs can not be achieved if only radioactive isotopes are included, and the objective of radioactive isotopes can be achieved, so it may not be supplied in any compound form. However, unlike the above physical characteristics of radioactive drugs, it cannot be interpreted to include not only the radioactive metal itself selected from radioactive isotopes but all compounds containing it, as well as the radioactive metal itself, unlike the above physical characteristics of radioactive drugs.

Therefore, “radioactive metal” in the instant Claim 1 ought to be deemed to mean only radioactive metal itself selected from among groups consisting of Tc, Ru, Co., Ltd, Pt, Fe,Os, Ir, W, Re, Cr, Mo, Mn, Ni, Rh, Pd, Nb and Ta radioactive isotope.

(B) Whether the "radioactive metal" is a medicine or medicine

With respect to whether the "radioactive metal" in the Claim 1 of this case constitutes medicine, the "radioactive metal" in the instant Claim 1 means the radioactive metal, selected from among the groups consisting of Tc, Ru, Co., Ltd, Pt, Fe,Os, Ir, W, C, Cr, Mo, Mn, Ni, Rh, Pd, Nd, Nb and Ta, which causes a non-radioactive metal and equivalent reaction with non-radioactive metal in mixture with non-radioactive metal added thereto, and therefore, it is necessary to examine, treat, treat, treat, or prevent human diseases in itself, and there is no evidence to support that the radioactive metal source does not directly treat or treat any other source or radioactive disease.

As a result, the Defendant, one of the radioactive metal compounds, asserts that it remains selectively in a specific long-term period of time prior to the development of multiple radioactive materials, and submits evidence Nos. 3, 4, 17 through 20, 3, as it is the stage of manufacturing radioactive drugs, synthetic compounds of non-radioactive products, radioactive species and non-radioactive compounds, and thus, the Defendant’s assertion that it constitutes one-stage radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive source or radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s radioactive material’s 4.

Therefore, the "radioactive metal" of the Claim 1 invention of this case does not constitute medicine.

(3) Next, there is no evidence to prove that “non-radioactive metal additives (which shall be selected from among Cu, Mo, Pd, Co., Ltd, Ni, Crr, Ag, and Rh) of the tride of the instant Claim 1, which are another starting material of the instant Claim 1, constitutes medicine used to diagnose, treat, treat, or prevent human diseases, even after examining the health, record.”

The defendant asserts that the radioactive metal of this case is a medicine under the Patent Act, as long as the radioactive metal of this case is a substance that explos the efficacy of the tekylium, since it does not have any medical effect when using radioactive metal alone; however, when using radioactive metal (teine) and radioactive metal together, the defendant plays a role of helping a specific institution of body, i.e., in the heart, to be accumulated in the heart and to be able to be operated in the heart, and thus, it is not a medicine. However, the above argument is without merit because the radioactive metal of this case does not constitute a medicine.

In addition, the defendant asserts to the effect that the plaintiff's Kadyas product, the main ingredient of which is non-radioactive metal added to e-radioactive metal, is mixed and sold in the form of kidy, constitutes a medicine, and the import permit certificate (Evidence B2) also constitutes prescription. The claim of the patent invention of this case, where the non-radioactive metal added to e-radioactive metal, the main ingredient of which is e-radioactive metal, is as well as returned agents, constitutes medicine as provided for in Article 4 subparagraph 2 of the former Patent Act, is invalid by the trial decision of the Intellectual Property Tribunal No. 2001 to Nov. 141 of the former Patent Tribunal, on the ground that the registration of this case constitutes medicine as provided for in Article 4 subparagraph 2 of the former Patent Act, and thus, the registration of this case is invalid. However, even if the above argument is asserted, it is not necessary to see that the remainder of the non-radioactive substance of this case, which is the starting substance of the Claim 1, as well as the above pharmaceutical substance-specific, which is entirely different.

Therefore, the term "use non-radioactive metal additives" of the Claim 1 invention of this case does not constitute medicine.

(4) On the other hand, “the radioactive metal and the trile livers with the ephrye,” which are the target substance of the instant Claim No. 1, is indicated in the specification of the instant patent invention as follows: “The ephye to be produced in accordance with the instant invention may be used for the marking of the human body, the measurement of waste function; the measurement of liver extract function; and the measurement of liver extract extract function; and the image of the heart (No. 1-3 10 to 11).” As such, “the ephye with the radioactive metal and the ephye riphoids” is a medicine used to diagnose, treat, treat, or prevent human diseases.

(5) As seen earlier, the instant Claim 1 invention does not constitute “an invention of a method of manufacturing a pharmaceutical product by mixing two or more medicines” in the latter part of Article 4 subparag. 2 of the former Patent Act, as the target substance, inasmuch as the “radioactive metal” and “radioactive non-radioactive metal value-added substance of the urryde,” which is the starting substance, cannot be deemed both as a pharmaceutical product.

Furthermore, the latter part of Article 4 subparag. 2 of the former Patent Act provides “an invention of a method to manufacture one medicine by mixing two or more medicines” as non-patent reasons for the treatment of a patient, or that of a pharmacist by prescription by doctors or dentists, and the term “preparation of medicines” under the Pharmaceutical Affairs Act provides that “an act of mixing two or more medicines according to a specific prescription or sharing one medicine in certain quantity so as to treat or prevent specific diseases of a specific person pursuant to specific directions.” (Article 2(15) of the Pharmaceutical Affairs Act provides that “an act of manufacturing one medicine by mixing two or more medicines with radioactive materials” under paragraph (1) of the same Article 4 of the same Act provides that “an act of mixing two or more medicines with radioactive materials by doctors or dentists, or by mixing two or more medicines with radioactive materials to be treated by doctors or dentists, and thus, an act of mixing two or more medicines with radioactive materials to be treated by doctors or dentists which are not necessarily necessary for treatment or treatment.” (Article 2(1)1) of the same Act provides that “an act of mixing with radioactive materials or radioactive materials.”

Furthermore, according to the evidence Eul 2, the plaintiff is a product that can easily implement the manufacturing method of the invention of this case, and the plaintiff manufactures and sells KIKO, which combines non-radioactive metals and returned agents, with the name of the product of this case, and the directions for the use of the above Kadyas product shall be limited to those prescribed by the doctor's will and shall comply with the directions for the use of the above Kadyas product. However, it is difficult to view the above Kadyas product as "the use of Kadyas medicine (9mTc)" only as "the use of Kadyas medicine," and it is difficult to see that the above Kadyas product is not directly administered by the doctor's practice of using the above Kadyas (9mC) mixed with the above Kadyas product of this case, and thus, it is difficult to see that the above Kadyas product of this case is a mixture with the above Kadythium product of this case.

In this regard, the defendant asserts to the effect that it constitutes a pharmaceutical preparation that is distinguished from the manufacture of a single compound since it is administered in the form of a product containing both radioactive metal and non-radioactive metal, which is advantageous to radioactive metal, in the actual administration of the substance manufactured by the invention of this case to the patient, not only separately administered the radioactive metal, which is a target substance, but also administered in the form of a product containing both radioactive metal and radioactive metal, but it is obvious that the invention of this case concerns only the method of manufacturing the distribution of radioactive metal, which is a target substance, and it is not about the method of administering the substance manufactured by it, and that the aforementioned method of administration asserted by the defendant is merely the method of using the radioactive metal, which is a one-way implementation mode of the invention of this case, and therefore, the above argument is without merit.

In addition, in light of the fact that Article 13-2 (2) 7 of the Enforcement Rule of the Pharmaceutical Affairs Act provides that the manufacturing method of the instant Claim No. 1 is also the preparation of a medicine by a doctor or a dentist. However, in light of the provisions of Article 21 (1) and (5) of the Pharmaceutical Affairs Act, Article 13-2 (2) of the Enforcement Rule of the Pharmaceutical Affairs Act is an exception to the principle that a doctor or a dentist is prohibited from preparing a medicine unless a pharmacist or a herb pharmacist is or he/she is prohibited from preparing a medicine, and it is merely a detailed provision that a doctor or a dentist is able to directly prepare a medicine on the grounds of the above provision, it shall not be deemed that the manufacturing method of the radioactive Claim No. 1 is the preparation of a medicine by mixing two or more medicines, and therefore, the above assertion is without merit.

(6) Finally, we examine whether the instant Claim Nos. 2 to 5 and 7 constitutes a ground for non-patent under the latter part of Article 4 subparag. 2 of the former Patent Act.

The instant Claim 2 invention limited radioactive metal to TC in the instant Claim 1 invention, and the instant Claim 3 invention limited non-radioactive metal to pyrop, cop and skeel in the instant Claim 1 invention, and the instant Claim 4 invention limited radioactive metal to TC in the instant Claim 3 invention, and the instant Claim 5 invention limited radioactive metal to TC-9 meters in the instant Claim 2 or 3 invention, and the instant Claim 7 invention does not fall under the instant Claim 2 or 3 invention, the instant Claim 5 invention does not fall under the instant Claim 2 or 3 invention of “non-pharmaceutical 1 or more” in the form of cNR (in the instant Claim 2 or 3, R does not fall under the instant Claim 2’s radioactive substance’s radioactive substance’s radioactive substance’s radioactive substance’s radioactive substance and its radioactive substance’s radioactive substance’s radioactive substance’s radioactive substance’s radioactive substance’s radioactive substance’s radioactive substance’s radioactive substance’s treatment or treatment.

B. Whether the challenged invention falls under the scope of the right to the patented invention of this case on the ground that the challenged invention falls under the "medical treatment" under Article 4 subparagraph 2 of the former Patent Act

(1) The defendant asserts that the invention subject to confirmation falls under "a medicine" as a ground for non-patent under Article 4 subparagraph 2 of the former Patent Act, and thus, the invention subject to confirmation does not fall under the scope of the right to the patented invention of this case, regardless of whether the invention is established as an invention widely available to the public and freely.

(2) On the other hand, Article 4 of the former Patent Act provides that "no patent shall be granted to an invention falling under any of the following subparagraphs, notwithstanding the provisions of Article 6." The legislative purport of the above provision is that a medicine is an essential substance for the diagnosis, treatment, treatment, or prevention of human diseases, and if patent rights are recognized, the supply of the medicine is limited so that the general public can not suffer the benefit of the medicine equally, and the price of the invention can not be unduly affected by the research of the manufacturing method, and thus, it will be prevented.

However, according to Article 4 of the former Patent Act, “the invention of a method to manufacture a medicine of one or more medicines by mixing the medicine or two or more medicines” is one of the passive requirements not to obtain a patent, and furthermore, it is clear that Article 4 of the former Patent Act does not provide that the invention shall be carried out freely, and that the patent right shall not be effective. Article 46 (Scope of No Effect of Patent Right) of the former Patent Act does not separately provide for the invention meeting the above passive requirements, and Article 46 (Scope of No Effect of Patent Right) of the former Patent Act does not provide for the invention. In light of the fact that Article 4 of the former Patent Act provides that the non-patent subject matter is a limited manufacturing method to guarantee free manufacturing of medicine itself, doctors, and pharmacists, etc., and the general manufacturing method that does not fall under such provision is protecting as a patent, it is evident that Article 4 of the former Patent

Thus, even if the challenged invention constitutes a medicine as alleged by the defendant, if it is used exclusively for the implementation of the plaintiff's patented invention of this case, the plaintiff's patent right is infringed. Thus, the above argument is without merit.

C. Whether the invention subject to confirmation falls under the invention of a method for manufacturing one medicine by mixing two or more medicines" under Article 4 subparagraph 2 of the former Patent Act, and whether the invention subject to confirmation falls under the scope of the right to the patented invention of this case

The defendant asserts to the effect that the invention subject to confirmation does not fall under the scope of the right to the patented invention of this case as a matter of course, since it is not possible to establish as a right because it is a non-patent cause under Article 4 subparagraph 2 of the former Patent Act, which combines two or more medicines, and the method of using the challenged invention itself constitutes a non-patent cause under the former Patent Act. However, the invention subject to confirmation does not fall under the scope of the right to the patented invention of this case as a matter of course. However, the invention subject to confirmation asserted by the defendant as the object of the passive claim to confirm the scope of the right to the patented invention of this case is merely the key itself, and it does not fall

D. Whether the challenged invention constitutes an indirect infringement under Article 64 subparagraph 2 of the former Patent Act

Article 64 of the former Patent Act provides that "the act of producing, selling, importing, or distributing goods used exclusively for the working of the method, if the patent is related to the invention of a process" shall be deemed infringement of the patent right or exclusive license concerned. Since the elements of a patent invention are not satisfied, direct infringement is not yet established, but it is a provision that "the act which inevitably leads to direct infringement shall be treated as infringement in the future in order to enhance the invalidation of the exclusion of direct infringement in the future."

In this case, as to whether the challenged invention is a product used exclusively for the implementation of manufacturing methods of the instant Claim 1 invention, the product name of the Defendant Company is “Skystar Project.” The efficacy and effect of the invention are indicated as “the use of injection in Hexazine (2-Mexazide oxide) tephium (9mC), which is a radioactive drug for diagnosis,” and the usage and dosage of the invention must be indicated as “the use of tephium (9mC) tephium (9mC) tephium tephium ephium ephium ephium ephac.g., 370 to 55mq (10 to 15mCi), 740(15mCi) tephyium epha, and ephaium ephaium ephaium ephaium ephaium ephaium ephaium ephaium ephaium ephaium eph.

Therefore, considering whether the use of the invention in question involves the same process as the manufacturing method of the instant Claim 1 invention, the method of manufacturing the instant Claim 1 invention is deemed to be a material non-radioactive substance, which is a starting material, mixed with “radioactive non-radioactive substance” and “radioactive metal” with the aforementioned non-radioactive metal to be returned to the radioactive material, and its radioactive metal content is to be produced with radioactive metal content at the first stage of using the instant Claim 1 invention, and thus, it does not include only the radioactive metal content itself at the stage of identifying the radioactive material content, and the radioactive material content of the instant Claim 1 in which the radioactive material content is identical to the radioactive material content at the stage of using the radioactive material content (in this respect, the radioactive material content at the stage of using the radioactive material content at which the radioactive material content is to be restored to the radioactive material content at the stage of identifying the radioactive material content at which the radioactive material content is to be restored to the radioactive material content at the stage of manufacturing the instant Claim 1.

However, the KIKO of the invention subject to confirmation is added to the scambane without the invention of this case (the content is extremely small as 7.5 to 75 z.). As such, in relation to the patent for the method of manufacturing the target substance by chemical reaction of multiple substances, multiple starting substances in the method are same as those in the method, and the reaction is also made by adding other substances to the same purpose substance within the scope of the existing patent right if it is made of the same purpose substance, it shall be proved that the reaction route is different from that of the patent right by adding the other substances, and the reaction route is different from that of the patent right, so it shall be proved that the reaction route is different to the previous one by adding the other substances. Thus, in manufacturing the target substance, the reaction route that occurs when adding the two starting substances to only the above two starting substances, and it shall be considered whether the reaction route is completely changed to the extent that it can lose its unity.

In regard to this, the defendant, instead of restoration or simple additives, forms "Aschine -T+1" which is an intermediate substance in direct reaction with tekylium (Tc+1). Since radioactive metal produces the above-mentioned target substance in reaction with "Ischine -T+1", it is argued that the reaction route is completely different from the invention of this case where radioactive metal directly produces target substance by putting them into non-radioactive metal, but there is no other evidence to acknowledge that it is not sufficient to acknowledge the above facts merely based on the descriptions of evidence Nos. 7 and 9, but it is hard to acknowledge that the plaintiff's response is the product of this case or the substance of this case to increase the production and sale of Kaschine - 2. According to each description of evidence Nos. 5 and Nos. 2, it is difficult to acknowledge that the plaintiff's response is the product of this case with a certain production/sale formula or the substance of this case where it can not be seen as the product of this case.

Therefore, it shall be deemed that the method of use according to the prescribed purpose of the invention subject to confirmation is accompanied by the same process as the method of manufacturing the invention under paragraph (1) of this case. Thus, the invention subject to confirmation is an object used only for executing the method of manufacturing the invention under paragraph (1) of this case. Accordingly, the invention subject to confirmation shall be deemed to fall under the scope of the right to the invention under paragraph (1) of this case by Article 64 subparagraph

Furthermore, as to whether the method of use of the invention in question involves the implementation of the manufacturing method of the invention in paragraphs 2 through 5, 7 of this case, the invention in Paragraph 2 of this case limited 1 to TC, and the invention in Paragraph 3 of this case limited non-radioactive metal from Paragraph 1 of this case to py, coke, and the invention in Claim 4 of this case limited radioactive metal to TC in Claim 3 of this case, and Paragraph 5 of this case limited radioactive metal in Claim 2 or 3 of this case to TC-9 meters, and Paragraph 7 of this case includes radioactive metal in Claim 2 or 3 of this case, and Paragraph 2 of this case includes the radioactive metal in Claim 2 or 3 of this case, and Paragraph 3 of this case also includes the radioactive metals in Claim 2 of this case to be proved in Section 7 of this case to be "the 5th invention in this case and the 5th invention in this case to be proved in Section 2 of this case to be "the 5th invention in this case to be proved et 2 of this case.

In addition, the defendant argues that the method of use of the challenged invention includes a scocon acid as an ingredient, and that there is a difference in the manufacturing method and composition of the patented invention of this case and that due to the difference in composition, the use of the challenged invention of this case shows an unexpected considerable technical effect in the patented invention of this case, such as stability of the key and improvement in the production ratio of the target material. Thus, the use of the challenged invention does not fall under the implementation of the manufacturing method of the patented invention of this case, and therefore, the key of the challenged invention does not fall under the scope of the right of the patented invention of this case, but the defendant claims that the challenged invention of this case does not fall under the scope of the right of the patented invention of this case. However, as long as the method of use of the challenged invention of this case is only the key itself and is not the method of use of the key, it is not necessary to determine whether the key of the challenged invention falls under the scope of the right of the patented invention of this case directly compared to the method of use of the challenged invention of this case.

E. Sub-committee

Therefore, the patented invention of this case does not fall under the scope of the right of the patented invention of this case because it does not fall under the "an invention of a method of manufacturing one medicine by mixing two or more medicines", one of the grounds for non-patent under the former Patent Act, and it cannot be denied the scope of right. The invention of this case constitutes "an invention of a method of manufacturing one medicine by mixing two or more medicines" under the former Patent Act, or "an invention of a method of manufacturing one medicine by mixing two or more medicines" under the former Patent Act, which is one of the grounds for non-patent under the former Patent Act. Furthermore, the invention of this case is an invention of this case used exclusively for carrying out the manufacturing methods of the invention of this case 1 through 5, 7. Thus, the defendant's act of producing and selling it as a business infringes the patent right of the invention of this case under Article 64 of the former Patent Act, and thus, the invention of this case falls under the scope of right. Thus, the decision of this case is unlawful within the scope of the above recognition.

4. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

Judges Lee Jae-hwan (Presiding Judge)