The meaning of "same evidence" under Article 147 of the former Patent Act, which provides for the principle of res judicata.

Article 147 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) which applies mutatis mutandis to a trial on a utility model right pursuant to Article 29 of the former Utility Model Act (amended by Act No. 4209 of Jan. 13, 1990) provides that when a trial decision on a trial or a trial on a complaint becomes final and conclusive and conclusive, anyone may not request the trial on the same facts and the same evidence, and thus, no person may request the trial on the same facts and the same evidence. Here, the same evidence includes not only the same evidence as the evidence of the final and conclusive trial decision, but also the evidence which has not been sufficiently significant to reverse the final and conclusive trial decision.

Article 29 of the former Utility Model Act (amended by Act No. 4209 of January 13, 1990); Article 147 of the former Patent Act (amended by Act No. 4207 of January 13, 1990)

[Plaintiff-Appellant] Plaintiff 1 and 3 others (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff

Defendant (Patent Attorney Park Jin-jin et al., Counsel for the defendant-appellant)

Patent Court Decision 99Heo5753 delivered on June 9, 2000

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

We examine the grounds of appeal.

1. Article 147 of the former Patent Act (amended by Act No. 4209 of Jan. 13, 1990) which applies mutatis mutandis to a trial on a utility model right pursuant to Article 29 of the former Utility Model Act (amended by Act No. 4209 of Nov. 13, 1990) provides that when a trial decision on a trial or a trial on a complaint becomes final and conclusive and registered or a judgment on a trial becomes final and conclusive, anyone may not request the trial on the same facts and evidence, and thus, no person may request the trial on the same facts and evidence. Here, the same evidence includes not only the same evidence as the evidence of the final and conclusive trial decision, but also the evidence which has not been sufficiently significant to reverse the final and conclusive trial decision (see Supreme Court Decision 90Hu1840 of Nov. 26, 191).

2. According to the reasoning of the judgment below, the court below held that the case where the defendant, based on evidence, filed a petition for a trial on invalidation of registration against the plaintiff (registration number omitted)'s utility model for "the utility model for the plaintiff's (hereinafter referred to as "the registered petition of this case")" on November 3, 1993, on the ground that the registered petition of this case was not new and non-obviousness, but the defendant filed a petition for a trial on the invalidation of registration on August 19, 1996 on the ground that the registered petition of this case was no longer a new and non-obviousness, and on October 28, 1997, the above decision of the Supreme Court rendered on October 28, 197, which was final and conclusive by the judgment of the court below, was identical to the above registered petition of this case (hereinafter referred to as "pre-existing trial") which was not yet submitted to the public trial court, and that the aforementioned registered petition of this case was no more than 52-9 new and open-type 536.

3. Examining the records and the above legal principles, the above recognition and determination by the court below is just and there is no error of law by misunderstanding legal principles or omission of judgment as pointed out in the grounds of appeal.

The grounds of appeal cannot be accepted.

4. Therefore, the appeal is dismissed, and all 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 Song Jin-hun (Presiding Justice)