(a) Object of adjudication on confirmation of the scope of rights to utility model rights;

(b) Where there is no dispute between the parties as to whether a device subject to adjudication falls under the scope of a registered utility model right, whether a request for confirmation of the scope of right is made (negative)

A. A trial to confirm the scope of a utility model right does not simply determine the status of a factual constitution, which is the scope of a device itself, but specifically determine the scope of the right in relation to the subject matter, so the subject matter of a trial to confirm the scope of a utility model right is a specific device that the claimant is the subject matter of the trial in the claim.

(b) If there is no dispute between the parties as to whether a device subject to a trial on confirmation of the scope of a utility model right falls or does not fall under the scope of a registered utility model right, the parties may not request a trial to confirm the scope of the right.

Article 35 of the Utility Model Act, Article 135 of the Patent Act

A. Supreme Court Decision 80Hu65 decided Apr. 12, 1983 (Gong1983, 817) 85Hu48.49 decided Oct. 22, 1985 (Gong1989, 1553) 89Hu1431 decided Feb. 9, 1990 (Gong190, 649)

Attorney Jeon Dong-hun et al., Counsel for the defendant-appellant-appellant

Attorney Park Gyeong-hwan et al., Counsel for the defendant-appellant

Korean Intellectual Property Office Appeal Trial Office 107 decided December 31, 1987

Supreme Court Decision 88Hu97 Delivered on November 14, 1989

Korean Intellectual Property Office Appeal Trial Office 1990 Dated January 31, 1990 Decision 472 dated January 89

The original adjudication shall be reversed.

The case shall be remanded to the Korean Intellectual Property Office Appeal Office.

We examine the grounds of appeal by the appellant.

When a claimant filed a petition on January 21, 1983 and filed a petition on May 2, 1984 for a trial against the respondent on the utility model right of this case registered under Article 26123 of the Utility Model Number 261 of the Utility Model Registration Act (a) where (a) the device falls within the scope of the right to the device of this case, the claimant answer that the technical composition of the device of this case cannot be identical to the design of this case, the claimant's claim that (b) the device of this case falls within the scope of the identity because (a) invention of this case is the same as the mere mere mere alteration of the design of this case, and thus (b) invention of this case is identical to the device of this case, and thus (a) invention of this case is deemed to fall within the scope of the right to the design of this case.

A trial to confirm the scope of the right of a utility model right does not simply determine the status of a factual constitution, which is the scope of a utility model itself, but specifically determine the scope of the right in relation to the subject matter. Thus, it is evident that the subject matter of a trial to confirm the scope of the right of a utility model right is a specific device that a claimant uses as the subject matter of a trial in his/her claim (see, e.g., Supreme Court Decision 71Hu18, Nov. 23, 1971; Supreme Court Decision 80Hu65, Apr. 12, 1983; Supreme Court Decision 85Hu48,49, Oct. 22, 1985; Supreme Court Decision 89Hu1431, Feb. 9, 190; Supreme Court Decision 89Hu1431, Feb. 9, 199).

However, according to the records, the claimant's (Ga) invention, which is the object of the trial, is not contested that it belongs to the scope of the right of the device in this case, but it is argued that the technical composition of the (Ga) invention belongs to only a different (Ga) device, and there is no dispute between the claimant and the respondent. Thus, if there is no dispute between the parties as to (Ga) invention, which is the object of the trial on confirmation of the scope of the right in this case, falls within the scope of the right in this case, it shall not be deemed that the claimant cannot request a trial on confirmation of the scope of right in this case. The court below should have determined that the claimant's (Ga) invention falls within the scope of the right in this case's (Ga) invention falls within the scope of the right in this case's case's (Ga) invention, and it is obvious that the claimant's (Ga) invention falls within the scope of the right in this case's case's (Ga) invention is within the scope of the right in this case's case's 981.

Therefore, the case is remanded to the Korean Intellectual Property Office for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-ho (Presiding Justice)