The case holding that in the case where the Korean Intellectual Property Office decided to refuse a patent in accordance with Article 32 of the Patent Act, on the ground that the name of the invention "functional kimchi manufacturing method and functionality therefrom" and the main contents of the invention constitutes an invention that is likely to harm public health in relation to Gap's invention, which is "a functional kimchi manufacturing method and functional kimchi with equal effect by delaying the well-being of kimchi by using Nanoin (or Dooin)", and that the main contents of the invention constitutes an invention that is "a functional kimchi manufacturing method and its functional kimchi", and that the patent examiner's decision to refuse a patent in accordance with Article 32 of the Patent Act was lawful in the case where Gap filed a

In a case where an examiner of the Korean Intellectual Property Office made a decision of refusal to grant a patent pursuant to Article 32 of the Patent Act on the ground that the name of the invention "functional kimchi manufacturing method and functionality therefrom" and the main contents of the invention falls under an invention that is likely to harm public health as to the invention of Gap, who is "a functional kimchi manufacturing method having equal effect by delaying the well-being of kimchi by using Nano-in (or Doo-in)", and the patent examiner made a decision of refusal pursuant to Article 32 of the Patent Act on the ground that the invention constitutes an invention that is likely to harm public health as to the invention of "a functional kimchi manufacturing method and functionality thereof," the case held that Eul (Ag) is legitimate because it constitutes a substance that causes the same disease as Gao when taking a large quantity of water for a long time, and there is no effective treatment law for Gao, and the standards and specifications of food processing" as publicly notified by the Ministry of Food and Drug Safety pursuant to Article 7 (1) of the Food Sanitation Act in [Attachment 3] because it constitutes an invention that does not harm public health and food content."

Article 32 of the Patent Act

Plaintiff (Patent Attorney Lee Han-chul, Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

June 15, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The decision made by the Intellectual Property Tribunal on December 16, 2015 by the Korean Intellectual Property Tribunal on the case 2015 Won30 shall be revoked.

1. Basic facts

A. The Plaintiff’s patent application invention (Evidence No. 2, No. 2, No. 1)

(a) Invention: Functional kimchi manufacturing method and functional kimchi resulting therefrom;

2) Date/application number: July 5, 2013 (application number omitted)

3) Claims (amended on January 15, 2015)

[Claim 1] The process of washing and saving raw materials of kimchi; the process of manufacturing silver containing ion ingredients; the process of manufacturing kimchi elcoon elcoon; the process of manufacturing kimchi elcoon mixed with the elcoon elcoon and kimchi elcoon; the process of manufacturing kimchi elcoon mixed with the above-mentioned kimchi elcoon; the process of mixing kimchi elcoons and ingredients of kimchi, including the process of mixing the above-mentioned kimchi el

[Claims 2] The method of manufacturing kimchi with characteristics that are characterized by the concentration of 4 to 20pm of silver water produced under Paragraph 1

[Claim 3] The method of manufacturing kimchi with characteristics that are made by mixing the water in the weight of kimchi 1,000 in the weight of kimchi 1 to 2 in the weight of kimchi in paragraph 1.

[Claims 4] Kimchi manufactured pursuant to any of the paragraphs 1 through 3

(iv)the main contents of the invention;

The application invention of this case contained in the main text is an invention concerning kimchi by delaying the well-being of kimchi using Nano (or Doo) to increase the distribution period of kimchi, by producing functional kimchi effective in the air-resistant, and the functional kimchi therefrom. According to the previous kimchi and its manufacturing methods, the opport is easy to be effective as soon as the opport is very soon, and the value as food ingredients is rounded off if kimchi is easy in the course of distribution, and there is a problem that the sense of food is considerably worse, and accordingly, it is difficult to keep the state of dumping the well-known unique kimchi that has become effective in the process of entry into force of kimchi. The application invention of this case is an invention of this case to eliminate the opport speed of kimchi in the process of entry into force of kimchi, to control the sediability of kimchi in the process of entry into force of kimchi, and to provide the maximum season of kimchi in the process of creating kimchi and to provide the kimchi of kimchi in the process of entry into force of kimchi, and to achieve this purpose by mixing it with the ingredients of kimchi in this case.

B. Details of the instant trial decision

1) On September 15, 2014, the examiner of the Korean Intellectual Property Office, on the patent application invention of this case, stated that “the invention of this case pertains to the manufacturing method of kimchi using “B”, “B” is known to have harmful effects, such as argyria, i.e., e., e., e., e., e., e., skin color, immunodeficiency function if taken in for a long time, and e.g., g., g., g., e., g., e., g., g., e., g., e., e., g., g., e., g., g., e.,

2) In order to overcome the foregoing grounds for rejection on January 15, 2015, the Plaintiff submitted an amendment and written opinion (Evidence A 4) to amend the claims of the instant invention in question. However, on May 15, 2015, the examiner of the Korean Intellectual Property Office issued a decision to reject the patent application of the instant invention (Evidence A 5) on the ground that even if based on such amendment, the grounds that the grounds for rejection, which would still undermine public health, was not resolved.

3) Accordingly, the Plaintiff filed an appeal against the foregoing decision of refusal with the Intellectual Property Tribunal, and the Intellectual Property Tribunal deliberated on it as the case of 2015 won or 3630, and on December 16, 2015, rendered the instant trial decision (Evidence A1) with the purport of rejecting the Plaintiff’s appeal on the ground that “kimchi manufactured by the invention of this case is likely to cause harm to the public health, and thus is not entitled to a patent as it falls under Article 32 of the Patent Act.”

2. Summary of the plaintiff's assertion

The pending invention of this case does not relate to kimchi using “A” itself as its raw material, but is related to kimchi using “A” ingredients. Therefore, it cannot be readily concluded that the pending invention of this case is an invention that is likely to harm public health on the grounds of data on harmfulness of “A”, such as the decision of refusal to grant the patent application invention of this case. Furthermore, the content of “B” used for the pending invention of this case is extremely small and are not harmful to human body.

Even before the Korean Intellectual Property Office, it is not subject to Article 32 of the Patent Act, but subject to the patent registration for the invention related to beverages containing ion components. Therefore, the decision of rejection made by the Korean Intellectual Property Office examiner by applying Article 32 of the Patent Act only to the invention filed in the instant case constitutes an illegal administrative disposition contrary to the principle of trust protection.

Nevertheless, the decision of this case was unlawful because the decision of rejection on the invention of this case was lawful.

3. Determination on the illegality of the instant trial decision

(a) Whether an invention is likely to harm public health;

However, for the following reasons, it is reasonable to view the pending invention as an invention that is likely to harm public health.

1) The patent application invention of this case, like the Plaintiff’s land register, uses dynas containing “ionion” ingredients, not “B” itself, for the resolution of its technical task. However, “Ag” is a substance causing a disease, such as argyria, in a case where large quantities are taken in for a long time. This is known as having been permanently formed so far as there is no effective treatment method for dynasium (Evidence B) (Evidence C).

2) Furthermore, according to Article 7(1) [Attachment 3] of the Food and Drug Safety Standards and Specifications publicly notified by the Ministry of Food and Drug pursuant to the Food and Drug Safety, which provides that the Minister of Food and Drug Safety shall determine and publicly notify the standards, etc. for the method of manufacturing, processing, using, cooking, and preserving food for the public health, “BL” is designated as one of the “raw materials not usable for food” (Evidence 10). In other words, “B” cannot be used as a raw material for manufacturing, processing, or cooking food under the domestic law, irrespective of its content.

3) According to the result of the Food Product Name Screening Service provided by the Ministry of Food and Drug Safety, “A” states as follows: “A” should not separately take in food ingredients as pollutants that may be exposed to human bodyly through food, drinking water, etc.; and in case of intentional taking in, it is known that there is a risk of harmful effects, such as argyria, dystrophism, i.e., i., e., hystrophism, i.e., hystrophya, i.e., g., hystrophism, etc.” (Evidence 7, ii).

4) Meanwhile, as in “A” as in “Ag”, “A” is also a component that can not be used for food. In other words, “A+A+A+B” is a kind of yeast for a long time, which is a kind of yeast 2) if yeast acids were to be used for a long time, the yeast from the yeast to the human body is returned to the yeast in the human body, and the restored metal is generated from the yeast in the human body; thus, this is the same in that ion is harmful to the human body when ions are used for a long period of time, only the metal is in the chemical acid. In fact, in Korea, after the diagnosis of yeast for five years, the consumers who recovered from ion for five years, filed a lawsuit against ion water manufacturing companies (Evidence No. 11).

5) In particular, the Ministry of Food and Drug Safety: (a) took measures on March 24, 2016, such as requesting the prohibition of KIKO search and advertising and customs clearance; and (b) distributed reports to consumers, where it is right to prohibit the consumption of a product containing liquid content, in order to prevent the manufacture and sale of a product containing ion ingredients from being sold indiscreetly through the Internet site, etc. (Evidence B).

6) In the event that kimchi is the most important food taken in almost every day and contains any component that is doubtful to the stability, there is no objective material to acknowledge the safety of kimchi even though it should be sufficiently secured by objective evidentiary data or experimental performance certificates, etc. Furthermore, even if the high temperature may be detrimental to the human body, the claim scope of the invention of this case does not limit the high temperature content.

B. Whether it is an illegal administrative disposition contrary to the principle of trust protection

However, for the following reasons, the decision of rejection on the patent application invention of this case violates the principle of trust protection, and thus cannot be deemed unlawful.

1) In other words, in order to apply the principle of the protection of trust to an act of an administrative agency in an administrative legal relationship, an administrative agency should have expressed a public opinion that is the subject of trust to an individual, and where an administrative disposition is taken following the expression of the above opinion, it is not likely to seriously undermine the public interest or legitimate interests of a third party.

2) However, according to the evidence evidence Nos. 9-11 and 14, the fact that the patent or utility model registration for “the manufacturing method of fluent salt by using drinking water containing ion temperature (registration No. 1 omitted),” “the manufacturing equipment of ionion water (registration No. 2 omitted),” “the manufacturing equipment of ionion water (registration No. 3 omitted),” and “the health functional beverage containing ion water (registration No. 4 omitted)” is recognized.

3) However, solely based on the foregoing circumstances, it cannot be deemed that the Korean Intellectual Property Office directly expressed to the Plaintiff the public opinion that it is not likely to harm public health on a food-related invention containing the amount of solution as to the invention of this case. Since the Korean Intellectual Property Office separately examines whether each application meets the requirements prescribed in the Patent Act and determines whether to register it, it is difficult for the Korean Intellectual Property Office to be detained in the registration cases, such as each patent certificate No. 9-11 and No. 14 presented by the Plaintiff.

4) Above all, Article 36(3) of the Constitution, which provides that the principle of trust protection that the Plaintiff is superior to the Plaintiff’s duty to protect the health of citizens, shall not take precedence over Article 36(3) of the Constitution. This is also an inherent limitation in the principle of trust protection that, in the event of an administrative disposition to protect trust, it is not likely to seriously undermine the public interest or legitimate interests

4. Conclusion

Thus, the patent application invention of this case is not patentable pursuant to Article 32 of the Patent Act because it constitutes an invention that is likely to harm public health. Thus, the trial decision of this case in the same conclusion is legitimate, and the plaintiff's claim seeking revocation is without merit.

Judges Lee Jong-dae (Presiding Judge)

Note 1) Madrypha is a disease that results from luxa’s long-term internal uniforms of early acid and luxa’s unfluxa’s unfluor who returns to the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of telegraph and

Note 2) The chemical formula of primary acid is AgN3, which is a nitrogen, which is a kind of chlorate, which is a kind of chlorates. The chemical formula of primary acid is AgN3, which is a kind of chlorates, which is a kind of chlorates. The two temperatures are turned into Ag+N3-, and this temperature (Ag+) shall be reverted to metal (Ag) upon the use of electronic inside the body.