Where a part of the claim(s) has grounds for invalidation of a patent, whether the whole of the claim(s) should be invalidated; and

A. In the Republic of Korea where the scope of a patent claim is adopted, where there are two or more claims within the scope of the patent claim, each claim within the scope of the patent claim may be invalidated. However, where some of the claims falls within the scope of the publicly known technology and there are grounds for invalidation of a patent, such as where part of the claims falls within the scope of the publicly known technology, the whole claim shall be invalidated unless it is recognized that the publicly known technology, etc. is closely combined with other non-obviousness recognized

B. The inventive step of salt products manufactured by mixing two or more compounds at a prescribed rate shall be determined on the basis of whether the product itself works in the composition itself, and even if an individual component constituting the composition belongs to the publicly known range, if it is mixed at a prescribed rate and resulting in a non-obviousness effect which cannot be predicted before.

A. Article 69(2)(a) of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) (b) of the same Act (referring to Article 133(1) of the current Patent Act)

[Plaintiff-Appellee-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Jong-soo et al., Counsel for plaintiff-appellant-appellee-appellant-appellant-appellee-appellant-appellee-appellant)

Busan Industrial Co., Ltd., Counsel for the defendant-appellant and two others

Attorney Kim Jong-sung, et al., Counsel for the defendant-appellant-appellee-appellant-appellee-appellee-appellant

Korean Intellectual Property Trial Office 89 No. 19 decided July 28, 1990

The original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office.

The grounds of appeal are examined.

1. According to the original decision, the court below held that the invention of this case is related to the development of reaction 5-60 square compound with 95-60 square compound with the general formula (I), as shown in its explanation, and that the combination 5-40 compound with 10 square meters and 5-40 square compound with the general formula (II), and that the general formula (I) compound used in the invention of this case and the general formula (II) used in the art 2 through 9 are an known compound, and that the combination 10 to 15 of the invention of this case is different from the scope of the claim, and that the combination 10 to 15 of the common formula (II) compound with the general formula with no non-obviousness in the process of executing 10, 11 of the invention of this case is non-obviousness, and that the combination 10, 111 of the general formula with no non-obviousness in the process of executing the invention of this case is non-obviousness or non-obviousness, and that the combination 1 or non-obviousness 2 (II) compound with the general formula of 151 to be non-obviousness.

2. In the Republic of Korea where the scope of a patent claim is adopted, where there are two or more claims within the scope of the patent claim, each claim within the scope of the patent claim may be invalidated (see Article 69(2) of the former Patent Act before the amendment as of January 13, 1990, and Article 133(1) of the current Act). However, in a case where part of the claims falls under the scope of publicly known technology and there are grounds for invalidation of a patent, such as where part of the claims falls under the scope of publicly known technology, the whole claim shall be invalidated unless it is recognized that the publicly known technology, etc. is closely combined with other non-obviousness recognized parts (see Supreme Court Decision 90Hu1567 delivered on April 15, 199).

Although the legal principles are different, the court below judged that even if there are grounds for partial invalidation in the patent claimed as a single claim, the inventive step of invention is recognized in the case of 1, the invention cannot be invalidated (the patent in this case is related to salt products manufactured by mixing two or more compounds in a prescribed proportion, and the inventive step of salt-making product should be determined depending on the effects of the product itself as to its composition. Although individual ingredients constituting the composition are included in the publicly known range, if they are mixed at a prescribed ratio, and if the previous unforeseeable effects have been created as a result of mixing them into the publicly known range, they will be non-obviousness. The court below should have deliberated on the effects of the composition itself as well as whether there are the effects of the composition itself among the created products of the patent in this case as a single claim, and on this basis, there is an error of law in the misapprehension of legal principles as to the original patent invalidation.

3. Therefore, without further proceeding to decide on other grounds of appeal, the case is remanded to the Korean Intellectual Property Office having jurisdiction over the appeal. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-ju (Presiding Justice)