[1] Whether a patent claim's independent claim is permitted to request a trial for correction adding only a dependent claim technically limiting and embodying the independent claim (negative)

[2] The meaning of "rectal correction" under Article 136 (1) 2 of the former Patent Act

[1] As long as each claim is independent of each other, the scope of the claims is substantially expanded or modified to add only a dependent claim technically limiting and embodying that independent claim. Thus, a petition for correction trial cannot be permitted.

[2] "Correction of an error" under Article 136 (1) 2 of the former Patent Act (amended by Act No. 5329 of Apr. 10, 1997) means correction of "an obvious error that is clearly stated in the specification in light of the overall description of the specification".

[1] Article 136 (2) of the former Patent Act (amended by Act No. 5329 of Apr. 10, 1997) (see current Article 136 (3)) Article 136 (1) 2 of the former Patent Act (amended by Act No. 5329 of Apr. 10, 1997)

[1] Supreme Court Decision 96Hu634 delivered on November 12, 1996

Sroan-Habing Stet cans and ribru et al. (Patent Attorney Kim Yong-sik et al., Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

Patent Court Decision 2004Heo127 delivered on July 1, 2004

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

1. According to the reasoning of the judgment below, the court below acknowledged the fact that the plaintiff added the patent registration of the patented invention in this case to the patent claim of this case (patent number omitted) which is "the new dives leading body of dives and method of its use" upon the plaintiff's request for a correction trial of this case (patent number omitted) was omitted by the correction as of October 2, 1997, which was amended as of October 30, 199. After the amendment as of January 24, 200, the court below determined to the effect that the patent registration of the patented invention in this case was made only after the correction as of January 24, 200 only for other claims without any mentioning it, and determined to the effect that the correction was legitimate because the above additional claim is a new addition to the claims omitted in the registered patent claim, and thus it does not constitute correction of clerical error, and even if the above additional claim is an extension to the patent claim of this case as of October 3, 1999.

2. As long as each claim is independent of each other, adding only a dependent claim technically limiting and embodying the independent claim is practically expanding or altering the scope of the right, and thus, a petition for correction trial is not allowed (see Supreme Court Decision 96Hu634, Nov. 12, 1996) and Article 136(1)2 of the former Patent Act (amended by Act No. 5329, Apr. 10, 197) refers to the correction of the contents of the specification or drawings that are clearly erroneous in light of the entire specification in light of the entire specification. In light of these legal principles, the judgment of the court below is just and there is no error of misapprehending legal principles as to the correction, failing to exhaust all necessary deliberations, or omitting judgment.

3. Therefore, the appeal is dismissed, and the 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 Kim Yong-dam (Presiding Justice)