[1] Criteria to determine whether the patent invention is equivalent to the (Ga) invention

[2] Requirements for the establishment of a patent invention and whether the patent invention is a patent-use invention in cases where an equivalent invention is used (affirmative)

[3] Whether the invention constitutes an invention using a chemical substance where there is a significant increase in the rate due to the addition of promotions in the invention of the method of manufacturing a chemical substance (affirmative)

[4] The case reversing the court below's decision on the ground that the corresponding part of the (Ga) invention corresponding to the patented invention was not examined as to whether it constitutes the equivalent invention of the patented invention

[1] In order for the (A) invention to be deemed within the scope of the right of the patented invention, an organic combined relationship between each element of the patented invention and that of the (a) invention must be included in the (a) invention. However, even if the elements of the (a) invention are exchanged or modified, the solution principle of the task is identical in both inventions, even if they are exchanged or modified, if they are based on such a substitution, they can achieve the same purpose, have the same effect as that of the patented invention, and have the same effect in substance, and if they are well-known to the extent that a person (party) with ordinary knowledge in the art to which the invention belongs can easily think of the fact that the (a) invention falls within the scope of the right of the patented invention, unless there are special circumstances such as the (a) invention falls under the technology that could have been easily made by the party at the time of the application for the patent, or the elements exchanged through the procedure for the application for the patent invention fall within the exclusion of the (a) invention from the scope of the right of the patented invention.

[2] In a case where the prior patent invention and the subsequent invention are in a use relationship under Article 45 (3) of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990), the subsequent invention falls under the scope of the right to the prior patent invention. Such use relationship is established by adding new technical elements to the technical composition of the prior invention, and the subsequent invention contains the substance of the prior invention and uses it as it is, but the subsequent invention maintains the unity of the subsequent invention as an invention. This also applies to the case where the prior invention is used not only as the prior invention but also as an equal invention.

[3] Considering that the chemical reaction affects the reaction speed or water rate by participating in the reaction, remaining after the reaction, and does not contribute to the chemical structure of the target substance, it cannot be deemed that the unity of the technical composition of the manufacturing method invention, i.e., a series of organic combinations producing a specific target substance by adding a reaction substance to the invention of the manufacturing method of a chemical substance does not lose the unity of the technical composition of the manufacturing method invention, i.e., a series of organic combinations producing a specific target substance by adding the reaction substance to the starting substance. Thus, even in a case where the addition of a promotion factor significantly increases, it is reasonable to deem that the invention constitutes a using invention containing the technical substance of the preceding patented invention, unless there are any special circumstances.

[4] The case reversing the court below's decision on the ground that the corresponding part of the (Ga) invention corresponding to the patented invention was not examined as to whether it constitutes an equal invention of the patented invention

[1] Articles 57 (see current Article 97) and 97 (1) 2 (see current Article 135 (1)) of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) / [2] Article 45 (3) (see current Article 98) of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) / [3] Article 45 (3) (see current Article 98) of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) / [4] Article 45 (3) (see current Article 98) of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) and Article 97 (1) 2 (see current Article 98), Article 97 (1) (3) (see current Article 97 (1) and Article 97 (1) (3) (1) (1) (3) (2) (see current Article 5) (1) (3))) of the former Patent Act)

[1] Supreme Court Decision 97Hu2200 delivered on July 28, 200 (Gong2000Ha, 1954) Supreme Court Decision 98Hu836 delivered on June 15, 2001 (Gong2001Ha, 1651) / [2] Supreme Court Decision 92Hu1660 delivered on December 5, 1995 (Gong196Sang, 235)

Elmmchemical Co., Ltd. (Patent Attorney Choi Jong-soo et al., Counsel for the defendant-appellant)

Shessan Hassan Hassokikikikikisa (Attorneys Park Su-gil et al., Counsel for the defendant-appellant)

Korean Intellectual Property Trial Office Decision 95Na240 dated January 6, 1998

The decision of the court below is reversed, and the case is remanded to the Patent Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the reasoning of the lower judgment, the lower court determined that the instant patent invention is an invention under paragraph 1 (a) of the patent applicant (hereinafter referred to as the “instant patent registration number”) and the patent invention (hereinafter referred to as the “PSI”), even if it is deemed that there were no significant reaction rate between the PEI and the PE2 invention under which it would have been generated by using new evidences, and that the reaction rate of the invention would have been less than 2-Amino4, 6-dimethyl (hereinafter referred to as the “PI”), even if it would have been found that there were no significant reaction between the PEI invention and the PE2 invention under which it would have been applied, and that the reaction rate of the invention would have been less than 4-Isium (hereinafter referred to as the “PS reaction”) would have been applied to the PE reaction of the invention under which it would be less than 5-Isium (hereinafter referred to as the “Isium reaction”) and that it would also be more likely that it would have been applied to ethyl-1-Isium substances.

2. (A) The invention falls within the scope of a patent right of the patented invention must be included in the (a) invention in an organic combined relationship between each element and each element of the patented invention. However, even if the (a) invention has a substitution or modification of the elements of the patented invention, the solution principle of the task is identical in both inventions, even if it is based on such substitution, if it is so obvious that a person with ordinary knowledge in the technical field to which the invention pertains (hereinafter referred to as a "party") can easily think of the same objective as that of the patented invention, and if the substitution of the elements of the (a) invention falls within the technology already known at the time of the application of the patented invention or through the procedure for the application of the patented invention, or if it is so obvious that the elements of the (a) invention fall within the scope of a patent invention that the person with ordinary knowledge in the technical field to which the invention pertains (hereinafter referred to as "party") can easily think, barring any special circumstance such as the critical exclusion from the scope of the patent right, they still fall within the scope of the patent right (a).

In addition, where the prior patent invention and the subsequent invention are in use under Article 45(3) of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990; hereinafter the same), the subsequent invention falls under the scope of the right to the prior patent invention. Such use relationship is established by adding new technical elements to the technical composition of the previous invention, and the subsequent invention contains the substance of the previous invention and uses it as it is, but the previous invention maintains the unity of the previous invention as an invention (see Supreme Court Decision 92Hu1660, Dec. 5, 1995). This also applies in cases where the previous invention is used not only for the same invention as the previous invention but also for the identical invention (see Supreme Court Decision 92Hu1660, Dec. 5, 1995)

3. Determination on the technical composition of the patented invention of this case and the (a) invention of this case

(1) According to the records, since the material containing the patented invention of this case is included in a substantial broad part, it is necessary to specify the invention most appropriate for comparison with the patented invention of subparagraph (a) in comparison with the patented invention of this case. It is the manufacturing method of the Pulphical ethyl, which is indicated as the following general formula, and the Pulphical ethyl is a new chemical that has not been publicly known before the application of the patented invention of this case.

(2) On the other hand, the (a) invention is related to the manufacturing method of the dynacide ethyl. The (b) invention is related to the manufacturing method of the target substance by reactioning PSC, NOCN, POC and ADP in a lump sum with the hynacot solution, but its specific contents are as follows: (c) manufacturing the intermediate products by first reaction PSC, NOCN and POCidine (hereinafter referred to as the "first-stage reaction") and then manufacturing the target substance by reactioning these intermediate products with ADP (hereinafter referred to as the "second-stage reaction").

(3) In comparison with the invention of this case, the first step reaction of the (Ga) invention is entirely separate from the patented invention of this case and is not subject to comparison, so the second step reaction part of the (Ga) invention should be compared with the patented invention of this case. The second step reaction of the (Ga) invention is the same as the reaction material and the target material is the same as the patented invention of this case and there is a difference only from the starting material (i.e., the intermediate product) (Although the first step reaction of the (Ga) invention is a difference from the patented invention of this case, the reaction is not subject to comparison because it is not the reaction factor of the patented invention of this case, but the reaction is not subject to comparison because it is not the element of the patented invention of this case, and when examining the specification (detailed specification 160) of the patented invention of this case, the two parties' arguments in relation to the starting material can be expressed in general formula as follows:

1. The response process alleged by the respondent;

(4) Furthermore, in the second stage reaction of the (A) invention, it is examined as to whether the starting material reaction with ADMP is a PSSI or a PSSI. However, considering the special characteristics of the chemical field, the evidence submitted by the claimant alone does not make it difficult to readily conclude that the PSSI and the chemical reaction can be objectively confirmed through the aforementioned chemical reaction, even if there is a possibility that PSSI and the PSSI can be found to have been exposed to a normal level. Among them, there is a possibility that the relative quantity of PSSI might be less than the detected concentration. Among them, there is a possibility that PSSI, which has a good reaction with ADP, can be reaction with ADP than the detected concentration. However, considering the special characteristics of the chemical field, it is difficult to readily conclude that there is a chemical reaction with AD through the above chemical reaction only under the circumstances where the claimant submitted it.

Therefore, barring special circumstances, such as confirmation of the reaction via PSI due to the development of technology, or objective verification of the reasons for not detected despite the existence of PSI, it cannot be viewed as the starting substance of the second stage reaction of the (A) invention, and the grounds for appeal disputing this issue cannot be accepted. As to this issue, the court below added the judgment that the reaction by PSI is merely an incidental reaction, even if it is generated, and it is not appropriate to regard that the reaction by PSI is excluded from the scope of the right to the patented invention without examining the degree and meaning of the incidental reaction, but it does not affect conclusion.

(5) Meanwhile, the respondent is presumed to have produced the same product by the same method pursuant to Article 45(2) of the former Patent Act, so long as the target material of the patented invention of this case is new, and is the same as the target material of the (a) invention of this case, the claimant should prove that the second stage reaction material of the (a) invention of this case should be excluded from the theoretical possibility that the PSSI can be seen. However, as long as the claimant proves through the detection experiment that there is no PSI and there is no PSI, it is reasonable to view that the claimant has fulfilled the burden of proving that the starting material of the second stage reaction is a fluium, so this argument has no merit.

4. Determination as to whether the scope of rights belongs

(1) The lower court determined to the effect that the technical idea of both inventions differs because the entire process of the (a) invention differs from the starting material, the reaction material, and the reaction mechanism in comparison with the instant patent invention, and in particular, since the number of target material increases substantially due to the addition of slidine, which serves as a slidine, in comparison with the instant patent invention. However, the reaction process of the (a) invention is gradually causing the first and the second stage reaction, as seen earlier, and the second stage reaction is included in the second stage reaction while maintaining its unity, and it can be deemed that the first stage reaction, which is a new technical summary, is added. Thus, even if the reaction material in the (a) invention is put into the reaction container at the same time, the reaction is successively caused, so long as the reaction is to be prepared for the second stage reaction among the inventions in subparagraph (a) invention in accordance with the legal doctrine of the invention used as seen earlier, (b) invention does not have the middle product reaction of the first stage reaction.

In addition, considering the fact that the chemical reaction affects the reaction speed or water rate by participating in the reaction, and remains after the reaction and does not contribute to the chemical structure of the target substance, it is reasonable to view that an invention of the method of manufacturing a chemical substance as an invention of the method of manufacturing a chemical substance does not lose the unity of the technical composition of the invention of the method of manufacturing a chemical substance, i.e., a series of organic combinations producing a specific target substance by adding the reaction substance to the starting substance, and thus, even if the addition of the promotional sheet causes a significant increase in the rate, it is reasonable to deem that the invention constitutes an invention using the previous patented invention containing the technical substance of the previous patented invention, unless there are any special circumstances. Accordingly, the judgment of the court below contrary to this is unlawful, and the part of the grounds for appeal pointing this out is with merit.

(2) Furthermore, the lower court determined that (a) invention does not fall within the scope of the right to the patented invention of this case on the ground that (a) invention does not fall within the scope of the right to the patented invention of this case on the ground that (a) invention

However, in relation to the second stage reaction, the reaction and the target substance are identical, and only the start material is converted into a florate sult. According to the records, the second stage reaction of the (Ga) invention and PSI, the starting material of the (a) invention, are all reactioned with ADMP, and both the reaction material and PSI, the starting material of the patented invention in this case, generated florithide ethylide of the florithium which is the same target material, and (a) is combined with a florithium which is the identical object in the (a) invention, without directly participating in the second stage reaction, is missing after the acquisition of the target material without participating in the second stage reaction, and thus the formation of the structure of the florithnium which is the target material, is not entirely involved in the formation of the structure of the PSI and (a) invention, the starting material of the patented invention in this case, and even if the flothium which is the starting material in the second stage reaction, it is not identical with the technical purpose and effect.

In addition, as a new material that is the starting material of the invention of this case and is not publicly known prior to the application of the patented invention of this case, it cannot be deemed that, in principle, it is clear to the extent that the party can easily consider that the PSSI of the patented invention of this case can be converted into the scalkinium of this case. However, according to the specification (160 pages) of the patented invention of this case, where it is difficult to proceed with the reaction to obtain the scalkin material of this case, the court below should consider whether there is an error in the misapprehension of legal principles as to whether the PSSI of this case's patented invention of this case's invention of this case's invention of this case's invention of this case's invention of this case's invention of this case's invention of this case's new material that is the primary material of the scalkinium of this case's invention of this case's invention of this case's invention of this case.

5. Therefore, the original decision shall be reversed, and the case shall be remanded to the Patent Court corresponding to the original decision. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jin-hun (Presiding Justice)