[1] The purport of Article 49-2 of the former Utility Model Act concerning correction of utility model registration in the procedure for invalidation trial of utility model registration and the scope of correction under the above provision

[2] Criteria to determine whether a correction of a claim constitutes a case where the correction of the claim is extended or modified

[3] The case holding that since the correction of a claim for utility model registration claimed by the owner of a utility model right on the registered complaint "gaser" in the registration complaint constitutes "a correction of an erroneous description" under Article 27 (1) 2 and 3 of the former Utility Model Act and "a clear statement is made" due to the correction, the claims of the registered complaint are not substantially expanded or modified, and thus can be permitted lawfully

[1] Articles 27(2) (see current Article 11, Article 47(3) of the former Utility Model Act (amended by Act No. 7872 of March 3, 2006), 49-2 (see current Article 33, Article 133-2 of the Patent Act), 51 (see current Article 33, Article 136 of the Patent Act, Article 136 of the Patent Act) / [2] Article 51(3) of the former Utility Model Act (amended by Act No. 7872 of March 3, 2006), Article 136(3) of the Patent Act / [3] Article 51(3) (see current Article 33, Article 136(3) of the former Utility Model Act (amended by Act No. 7872 of March 3, 2006), Article 51(3) (see current Article 33, Article 136(3) of the Patent Act) of the former Utility Model Act (amended by Act)

[1] Supreme Court Decision 75Hu5 delivered on August 24, 1976 (Gong1976, 932), Supreme Court Decision 87Hu63 delivered on March 28, 1989 (Gong1989, 681) / [2] Supreme Court Decision 99Hu2815 delivered on December 11, 2001 (Gong2002Sang, 317), Supreme Court Decision 2003Hu2010 Delivered on April 15, 2005 (Gong2005Sang, 762)

Gaun Co., Ltd. (Patent Attorney Full-time et al., Counsel for the defendant-appellant)

Dana Korea Co., Ltd. and one other (Patent Attorney Park Jong-dae et al., Counsel for the defendant-appellant)

Patent Court Decision 2003Heo5866 Decided September 23, 2004

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

1. As to the second ground for appeal

A. According to Article 49-2(1) of the Utility Model Act, "the owner of a utility model right who is the respondent of a trial for invalidation may request correction of the specification or drawing(s) only where it falls under any subparagraph of Article 27(2)." Each subparagraph of Article 27(2) of the same Act provides that "if a claim for utility model registration is reduced 1. 2. is corrected, it shall be clear that it is unclear 3. ....." Meanwhile, under Article 51(2) and (3) of the same Act as applied mutatis mutandis pursuant to Article 49-2(4) of the same Act, correction is not inconsistent with the specification or drawing(s) originally attached to the application for utility model registration, and it shall not be deemed that it is inconsistent with the specification or drawing(s) of the utility model registration within the scope of 9. It shall not be deemed that the correction or correction of the claim(s) is not permissible within the scope of the original specification or drawing(s) and it shall not be deemed that the correction or correction would be permitted within the scope of the claim for invalidation.

B. In light of the above legal principles and records, the term "gas hole (2a)" in the registered complaint of this case (No. 6569) with the name "gas hole" is obvious that it is a clerical error in the "Unfit hole (2a)" in light of the entire specification and drawings, and thus, it constitutes "a correction hole (2a)" as "a correction hole (hereinafter "1")" as provided in Article 27 (2) 2 of the Utility Model Act, and it constitutes "a correction of misfitient description" in the registration complaint of this case (hereinafter "a correction statement") which is made within the scope of "a hole of this case" or "a hole of this case (4)" which is made within the boundary of "a hole of this case" and the term "a hole of this case (4)" in the registration complaint of this case shall be interpreted as "a hole of this case" which is made within the boundary of the inner area of the inner area of this case and shall be interpreted as "a hole of this case (4)" and "a hole of this case" shall be interpreted as a hole of this case.

2. Regarding ground of appeal No. 1

Examining the reasoning of the judgment below in light of the records, the court below is just in finding that the registered device of this case differs in the purpose of comparison Nos. 1, 2, from comparison Nos. 1, and 2 after correction in comparison with the registered device of this case and the comparative device No. 1, 2, and there are all common components in composition, but there are lack of comparison Nos. 1, 2, and the important components for achieving the purpose of the registered device of this case are different from comparison No. 1, 2, due to the difference in these components, the effects achieved in the registered device of this case No. 1, 2 are different, and the registered device of this case cannot be deemed to be easily designed by a person with ordinary knowledge in the field of relevant technology from comparison No. 1, 2, and there are no errors in the misapprehension of legal principles as to the determination of inventive step of a device as otherwise alleged in the ground of appeal.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)