The case holding that the court cannot maintain the above trial decision on the ground that the substance of the invention claimed in the application is not new, in case where the Korean Intellectual Property Office only considered the inventive step of the invention in the application from the first notification of the ground of refusal to reject the application until it makes a trial decision on the rejection of the application, and it did not give the applicant an opportunity to correct the specification on the ground that the invention in the application

Unless there are circumstances of the special group, the invention is new and non-obviousness is, in principle, independent of the grounds for non-obviousness, and the Korean Intellectual Property Office notified the applicant of the submission of a written opinion on the grounds that the invention in the application is not new until the decision of the first notification of the grounds for rejection on the application is rendered, and the applicant did not give an opportunity to correct the specification on the grounds that the invention in the application is not new until the decision of the trial is rendered, and the Korean Intellectual Property Office consistently recognized the substance of the invention in the application as the substance of the patent application is considered to have non-obviousness, and even if there is a part recognized as non-obviousness as a result of the court properly grasping the substance of the invention in the application, the conclusion of the trial decision rejecting the application for the application for a different reason is just and the decision to maintain the trial decision is unreasonable, and therefore, it is reasonable to recognize the purport of the invention in the application and to revoke the wrong decision of the non-obviousness.

Articles 29(1), 42(4), 97 and 170 of the former Patent Act (amended by Act No. 6411 of Feb. 3, 2001)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Elfatop S. A. (Patent Attorney Park Jong-soo et al., Counsel for the defendant-appellant)

The Commissioner of the Korean Intellectual Property Office

Patent Court Decision 99Heo5326 delivered on May 25, 2000

The appeal is dismissed. The costs of appeal are assessed against the defendant.

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

1. As to the interpretation of the claim No. 1 of the patent application invention of this case

According to the reasoning of the judgment below, the court below determined that the patent application invention of this case (title: metal dypher; metal dyphere; patent application made on January 10, 1996; product made mainly composed of stable chalpher; metal dyphere; metal dyphere; product made mainly composed of chalphere; and product made of dyphere; and product made of dyphere; and product made of dyphere; and product made of dyphere; and product made of dyphere; and product made of dyphere; and product made of dyphere; and product made of dyphere; and product made of dyphere; and product made of dyphere; and product made of dyphere; and product made of dyphere and product made of dyphere.

In light of the records, the above recognition and decision of the court below is just, and there is no error of law in the misapprehension of legal principles as to the interpretation of claims as pointed out in the grounds of appeal.

2. As to the inventive step of the patent application invention of this case

According to the reasoning of the judgment below, among the methods of a claim under Paragraph (1) of the claim of the patent application of this case, the court below determined that the patent application of this case was made based on the summary recognized by the Intellectual Property Tribunal, i.e., "the high temperature and sloping method of metal parts by the products composed of not less than 1, not less than 1, not less than 2-Ethal alcene and not less than 1, and the European Patent Gazette No. 256903 (Evidence No. 2-2), a publication distributed prior to the application of the patent application of this case, compared to the cited invention described in subparagraph 1 of Article 256903 (No. 2-2 of the Patent Gazette, the patent application of this case, other than Kenya's ingredients, has more effect of stabilizing chlothic ethylene than the cited invention's chlothal ethyl creation, and there is no evidence that the patent application of this case could not easily be any difference between the cited invention and the cited element.

In light of the records, the above recognition and judgment of the court below are just, and there is no error of law such as incomplete deliberation or omission of judgment as pointed out in the grounds of appeal.

3. As to whether the ground for rejection ruling and another ground for rejection are applicable

According to the reasoning of the judgment of the court below, the Korean Intellectual Property Office recognized the plaintiff's patent application of this case as non-obviousness based on non-obviousness evidence and presented an opinion of the court below on July 22, 1998 on the summary of "at least one 1, 2, al.e., al., al., al.s., al.s., al.s., al.s., al.s., al.s., al.s., al.s., al.s., al.s., e., al.s., e.s., e., g., e., g., e., g., e., g., e., g., e., g., e., g., e., g., e., g., e., e., g., e., g., g., e., g., e., e....................s.s.

In light of the records and relevant Acts and subordinate statutes, the above recognition and determination by the court below is just, and there is no error in the misapprehension of legal principles as pointed out in the grounds of appeal.

4. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-in (Presiding Justice)