If a person who has been granted a patent license is entitled to seek confirmation of invalidity of the patent (negative)

A person who has been granted a patent license from a patentee does not have an interest in seeking confirmation of invalidity of the patent during the period for which the patent is granted, because there is no likelihood that the patent will be infringed against the patent right during the period for which the patent is granted, and therefore there is no interest in seeking confirmation of invalidity of the patent during the period for which the patent is granted. The claimant who has been granted a patent license during the appeal trial is not an interested party seeking confirmation of invalidity of the patent, and the existence of such interest

Article 97 of the Patent Act

Supreme Court Decision 77Hu49 Decided April 10, 1979, 76Hu7 Decided March 22, 1977, 73Hu37 Decided March 12, 1974, 70Hu68 Decided April 28, 1971, 62Hu14 Decided February 28, 1963

Geumsung Co., Ltd.

Patent Attorney South Korea, the respondent's agent

On May 28, 1980, the appellant of the Korean Intellectual Property Office (hereinafter referred to as the "Appellant") rendered a trial ruling 1978

The case shall be remanded to the Korean Intellectual Property Office by destroying the original trial decision.

We examine the grounds of appeal.

According to Article 97(2) of the Patent Act, a trial to invalidate a patent under Articles 97(1)1 and 97(1)5, 69(1), (2), and (3) of the same Act shall be requested only by interested parties or examiners, and interested parties shall be deemed to include those who are currently suffering or are likely to suffer occupational loss due to the concern that a patent holder may oppose his/her right. A person who has been granted a patent license from a patent holder shall be deemed to have no interest in seeking confirmation of the patent during the period of the patent license because there is no concern that the patent will be contested during the period of the patent license and there is no concern that the patent holder would suffer or would suffer occupational loss, and the existence of such interest in seeking a invalidation trial is an ex officio examination (see Supreme Court Decision 62Hu14, Feb. 28, 1963; Supreme Court Decision 7Hu377, Mar. 12, 1974; 207Hu7867, Jul. 17, 19777).

However, according to the original decision, according to the basic contract and the purchase specifications between the claimant and the respondent, the court below held that the claimant made the plaintiff to use the original patent by manufacturing a hiver for fish-mixed under the patent of this case and provided it to the claimant, and there is no fact that the parties granted the right to practice the patent of this case, and the claim of this case was entered into a purchase contract between the supplier and the user. Thus, according to the copy of the registration of the patent of this case which is bound in the record, the claimant can be known that the patent of this case was authorized to do so by the interested party. Thus, the claimant cannot be viewed as belonging to the category of the interested party as stated above. Thus, the original decision cannot avoid any lack of sufficient deliberation as to the legitimacy of the request for a trial. Thus, the appeal is justified.

Therefore, it is so decided as per Disposition by the assent of all participating Justices on the reversal and return of the original adjudication.

Justices Lee Il-young (Presiding Justice)