[1] Criteria for determining the scope of the right or protection of a utility model right

[2] Whether (a) a device in comparison with a registered utility model falls under the scope of a right to the registered utility model in a case where only a part of the essential elements stated in the claim of the registered utility model exist (negative)

[1] According to Articles 8(4) and 29 of the former Utility Model Act (amended by Act No. 5577 of Sep. 23, 1998), and Article 97 of the Patent Act, the scope of protection of a registered utility model shall be determined by the matters described in the scope of a utility model application, and at least one claim must be protected, and the scope of a utility model application shall be specified only by the matters that are indispensable for the composition of the device. Thus, the scope of the right or the scope of protection of a utility model shall be determined by the matters described in the scope of a utility model application among various matters described in the specification. Even if the description alone is unknown or unknown, if it is not possible to determine the technical scope of the utility model, the technical scope or the scope of the right of the utility model shall be determined as a whole by supplementing other parts of the specification such as the detailed description of the device or drawings. However, even in such a case, it is not permissible to expand the scope of a utility model application by any other description in the specification.

[2] In a case where a claim in a registered utility model consists of multiple elements, the technical engineer as a whole which is an organic combination of each element shall not be protected independently, and each element shall not be protected independently. Thus, if (a) a device compared to a registered utility model has only a part of the essential elements as stated in the claim in the registered utility model, and the remainder of the elements are lacking, in principle, the device does not fall under the scope of the right in the registered utility model.

[1] Articles 8(4) and 29 (see current Article 9(4) of the former Utility Model Act (Amended by Act No. 5577, Sep. 23, 1998); Article 97 of the Patent Act / [2] Articles 8(4) (see current Article 9(4)), 29 (see current Article 42) of the former Utility Model Act (Amended by Act No. 5577, Sep. 23, 1998); Article 97 of the Patent Act

[1] [2] Supreme Court Decision 98Hu2351 delivered on November 14, 200 (Gong2001Sang, 65) / [1] Supreme Court Decision 94Hu1787 delivered on December 12, 1995 (Gong1996Sang, 395) Supreme Court Decision 95Hu1050 delivered on December 6, 1996 (Gong197Sang, 207) Supreme Court Decision 96Hu118 delivered on May 28, 1997 (Gong197Ha, 1875) (Gong197Ha, 1875), Supreme Court Decision 96Hu1040 delivered on April 10, 198 (Gong198Sang, 1361)

Plaintiff

Defendant 1 and one other (Law Office, Attorney Choi Jong-tae, Counsel for the defendant-appellant)

Patent Court Decision 98Heo5800 delivered on November 19, 1998

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

According to Articles 8(4) and 29 of the former Utility Model Act (amended by Act No. 5577 of Sep. 23, 1998), and Article 97 of the Patent Act, the scope of protection of a registered utility model shall be determined by the matters described in the scope of a utility model application, and the scope of a utility model application shall be at least one claim stating the subject matter of protection, and the subject matter of the claim shall be described only in the matters indispensable for the composition of the device. Thus, the scope of the right or the scope of protection of a utility model right shall be determined by the matters described in the scope of a utility model application among various descriptions described in the specification. If the technical composition of the utility model is not known or it is impossible to determine the technical scope, the technical scope or the scope of the right of the registered utility model shall be determined as a whole by supplementing other parts described in the specification, such as a detailed description of the device or drawings, even in such case, it is not permissible to expand the scope of a utility model application by any other description (see, e.g., Supreme Court Decision 96Hu.

In addition, in a case where a claim in a registered utility model consists of multiple elements, it shall not be protected as a whole as an organic combination of each element, and each element shall not be independently protected. Thus, in a case where (a) a device compared to a registered utility model has only a part of the essential elements as stated in the claim in the registered utility model, and the remainder of the elements is lacking, in principle, the device does not fall within the scope of the right in the registered utility model (see Supreme Court Decision 98Hu2351, Nov. 14, 200).

According to the reasoning of the judgment below, the court below determined that (a) the device of this case consists of two parts of the main body (10) and the main body (103) of the plan of this case, which correspond to the plan of this case (20), but the main body (103) of the plan of this case consists of two parts of the plan of this case, which are corresponding to the plan of this case (10) and the plan of this case (10) but the main body of this part (103) is only a stolen function even if it is based on the manual itself, and that the plan of this case does not fall within the scope of the plan of this case (12) and the plan of this case, which does not fall within the scope of the plan of this case, under the premise that the registration of this case does not fall within the scope of the plan of this case (14) and (2) the plan of this case, which does not fall within the scope of the purpose of the plan of this case (2) the plan of this case, which does not fall within the scope of the registration of the plan of this case (14).

In light of the records and the above legal principles, the above judgment of the court below is just and there is no error of law such as misconception of facts as to the scope of the right in the petition for registration of this case.

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 Son Ji-yol (Presiding Justice)