In cases where patent rights are jointly owned, whether each co-owner's co-ownership can be subject to seizure without the consent of the other co-owners (negative)

Article 273 of the Civil Act, Article 99 of the Patent Act

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

Tyman loan Co., Ltd.

[Judgment of the court below]

Suwon District Court Order 2011Ra1492 dated November 22, 2011

The order of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of reappeal are examined.

In cases where a patent right is jointly owned, each co-owner may not transfer his/her share or establish a pledge on his/her share without the consent of the other co-owners, and the co-ownership relation of the patent right is equivalent to the joint ownership (see Supreme Court Decision 97Da41295, Mar. 26, 199). Also, the purpose of prohibiting the free transfer, etc. of his/her share is to protect the interests of the other co-owners. Thus, each co-owner's co-ownership share may not be subject to seizure unless the consent of the other co-owners is obtained.

According to the reasoning of the order of the court below and the record, the patent right of this case is jointly owned by the Re-Appellant and the Non-Appellant Co., Ltd., and the other party applied for attachment order with the consent of other co-owners, such as the above company.

Examining the above facts in light of the legal principles as seen earlier, the instant request for seizure order against the other party’s co-ownership, which cannot be seized, is unlawful.

Nevertheless, the court below determined that the re-appellant's co-ownership of the patent of this case can be seized on the ground that the patent right can be seized without the other co-owner's consent. Such order of the court below erred by misapprehending the legal principles as to the eligibility to seize the patent right's co-ownership share, which affected the conclusion of the

The ground of reappeal assigning this error is with merit.

Therefore, the order of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)