The case holding that the judgment of the court below which judged the invalidation of a patent prior to the correction is a ground for retrial under Article 422 (1) 8 of the Civil Procedure Act, which affected the judgment, on the ground that there is a ground for retrial under Article 422 (1) 8 of the Civil Procedure Act, and a ground for retrial under Article 422 (1) 8 of the Patent Act has an effect on the judgment, in case where a trial decision to correct the patent became final

Where a patent invalidation trial case becomes final and conclusive during the final appeal, the patent invention is filed in accordance with the specification after correction pursuant to Article 136(9) of the former Patent Act (amended by Act No. 5329 of Apr. 10, 1997), and the establishment of the patent right becomes effective after the correction. Thus, the judgment of the court below holding that the patent invention before correction has a ground for retrial under Article 422(1)8 of the Civil Procedure Act, which affected the conclusion of the judgment.

Articles 133 and 136(1) and (9) of the former Patent Act (Amended by Act No. 5329, Apr. 10, 1997); Articles 393 and 422(1)8 of the Civil Procedure Act

The Republic of Korea shall set aside a shower (Attorney above-soo et al., Counsel for the defendant-appellant)

Malovakia Haakia (Patent Attorney Ha Sang-gu et al., Counsel for the defendant-appellant)

Patent Court Decision 98Heo4579 delivered on February 4, 1999

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

The lower court determined that the patent claim scope of the instant patent invention (patent registration number omitted) and paragraphs (1) and (2) (hereinafter referred to as the “instant patent invention”) of the instant patent invention (patent registration number omitted) can easily be made by a person with ordinary knowledge in the relevant technical field by means of the invention described in a publication published prior to the filing of the patent application, and thus, should be invalidated by lack of inventive step.

However, according to the records, with respect to the patented invention of this case, the decision of December 29, 200 which permitted the correction (reduction of the scope of a patent claim) after the judgment of the court below after the plaintiff's request for a correction trial was made, and the decision becomes final and conclusive on January 6, 2001. Thus, the patented invention of this case shall be deemed to have been filed in accordance with the specification after correction under Article 136 (9) of the former Patent Act (amended by Act No. 5329 of Apr. 10, 197) and the registration of the establishment of the patent right shall be deemed to have been made.

Therefore, the judgment of the court below that judged the invalidity of the patented invention of this case prior to its correction was the result of the violation of Acts and subordinate statutes that affected the judgment due to the grounds for a retrial under Article 422 (1) 8 of the Civil Procedure Act. Thus, the ground for appeal pointing this out is justified.

Therefore, without determining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)