(a) Litigation procedures relating to patent rights jointly owned;

(b) Validity of a petition filed by one of the co-owners of a patent right for appeal;

A. According to Article 54(2) and (3) of the Patent Act, the joint ownership relationship of a patent is equivalent to the joint ownership relationship as stipulated in Article 273 of the Civil Act. Thus, if the patent is jointly owned, all the joint owners shall be the requester or respondent of the trial, and the trial procedure shall be decided jointly with all the joint owners.

(b) An appeal filed by one of the co-owners of a patent right shall also take effect for another co-owner, and the appellate court shall make a trial decision by designating another co-owner who is in the necessary co-litigation relation as a co-party.

Articles 54(2), 54(3), 99, and 125 of the Patent Act, Article 63(1) of the Civil Procedure Act

Nayang Industrial Co., Ltd., Counsel for the plaintiff-appellant-appellant

Attorney Park Yong-il et al., Counsel for the plaintiff-appellee-appellant

Korean Intellectual Property Office No. 78 delivered on July 31, 1987

The original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Trial Office.

The grounds of appeal are examined.

According to the reasoning of the original decision, the court below held that Article 99 (2) of the Patent Act as applied mutatis mutandis in Article 126 of the Patent Act provides that if a patent right or a patent right is jointly owned by all the co-owners, all the co-owners shall be the petitioner or the respondent of the trial, and that the invention of this case as provided in Article 6265 of the Patent Act is jointly owned by the Korea Sale and Industry Co., Ltd. and two Korean Branch Co., Ltd., the judgment of this case is obvious in its original register and the judgment of this case as provided in the above is a requisite co-litigation for all the co-owners. In this case, only one of the Korean Sale and Industry Co., Ltd., which is not all the co-owners, shall not be dismissed as it is unlawful to correct the defect.

Article 54(2) and (3) of the Patent Act provides that in a case where a patent right is jointly owned, each co-owner may not transfer his share without the consent of the other co-owners or establish a pledge right aiming at his share, and that patent right cannot be granted an exclusive license or non-exclusive license. Thus, joint ownership of the patent is equivalent to joint ownership as provided in Article 273 of the Civil Act. Therefore, in a case where a patent right is jointly owned, all joint owners or defendants shall be the applicant for the trial in the trial, and therefore, in a case where a patent right is jointly owned, the procedure for trial on the patent right to be jointly owned shall be jointly and severally decided against all the co-owners, as well as the so-called necessary co-litigation. However, in such necessary co-litigation, it is effective for all the co-litigants (see Article 63(1) of the Civil Procedure Act), and examining records of the invention in this case, a claimant shall not belong to the first trial decision against the designated invention in this case (see Article 63(1) of the Patent Procedure Act).

If so, the appeal filed by one of the joint parties is effective even for the Korean Branch Co., Ltd., which is the other joint parties. Thus, the court below erred by misapprehending the legal principles on the appeal filed by one of the joint parties, which dismissed the appeal filed by one of the joint parties as its own law, although the court below should have rendered the adjudication decision by making the above joint parties which have a necessary co-litigation relation as a joint party, and there is a ground for appeal that causes the error of this error.

Therefore, the original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Office having jurisdiction over the original trial. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Man-hee (Presiding Justice)