[1] Criteria to determine whether the relation between the registered device and the (a) device is equal

[2] Requirements for the establishment of a use relationship between a prior registered device and a subsequent device, and whether a use relationship is established even when using an equal device within the registered device (affirmative)

[3] The case holding that (a) the device falls under the scope of the right of the registered device since it is used as it includes the same device as it is for the registered device

[1] In order for a device to be deemed to fall under the scope of a right within the registered device, an organic combined relationship between each element and element within the registered device must be included in the (a) device. However, even if the (a) device contains a substitution or modification of elements, both devices are identical to the solution principle in both devices; even if such substitution is made, if it is possible to achieve the same purpose within the registered device and has a substantial same effect; and if it is so obvious that a person with ordinary knowledge in the technical field to which the device pertains can easily think of the device; (a) the device is deemed to fall under the category of technology that could have been easily designed by the registered device at the time of filing an application for the registration; or (b) the elements of the (a) device are food excluded from the scope of a claim for registration through the procedure for filing an application for registration within the registered device; and (a) the elements of the device must be deemed to fall under the equivalent scope of the registered device and the elements of the (a) device within the registered scope.

[2] In a case where a device is in a utilization relationship between a prior registered device and a subsequent registered device, the subsequent device shall belong to the scope of the right in the prior registered device. Such use relationship is established after adding new technical elements to the technical composition of the prior registered device, and the subsequent device includes a summary of the prior registered device and uses it as it is, but it is also established when the subsequent registered device maintains the unity of the device as a device. This also applies to the case where the prior registered device uses an equal device as well as the same device as the prior registered device.

[3] The case holding that (a) the device falls under the scope of the right of the registered device because it is used as it includes the equal device of the registered device

[1] Articles 29 (see current Article 42), 35 (see current Article 45), 97, and 135 of the former Utility Model Act (amended by Act No. 5577 of September 23, 1998), and Articles 97, and 135 of the Patent Act / [2] Article 25 (see current Article 39) of the former Utility Model Act (amended by Act No. 5577 of September 23, 1998) / [3] Articles 25 (see current Article 39), 29 (see current Article 42), and 35 (see current Article 45) of the former Utility Model Act), Articles 97, and 135 of the Patent Act

[1] [2] Supreme Court Decision 98Hu522 delivered on August 21, 2001 (Gong2001Ha, 2110) / [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 90Hu1499 Delivered on November 26, 1991 (Gong192, 305), Supreme Court Decision 92Da830 delivered on October 27, 1992 (Gong192, 3258), Supreme Court Decision 96Hu296365 delivered on December 16, 195 (Gong1995)

Plaintiff (Patent Attorney Kim Jong-ap et al., Counsel for the plaintiff-appellant)

Defendant (Patent Attorney Kim Yong-dae, Counsel for defendant-appellant)

Patent Court Decision 200Heo1207 delivered on December 22, 2000

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate brief filed after the lapse of the period).

1. (A) In order for a device to be deemed within the scope of a right within the registered device, an organic combined relationship between each element and element within the registered device must be included in the (a) device. However, even if (a) device to replace or alter the elements, both devices have the same solution principle in both devices; even if they are subject to such substitution, they can achieve the same purpose within the registered device and have the same effect in substance; and (b) if it is so obvious that a person with ordinary knowledge in the field of technology to which the device pertains (hereinafter referred to as a "party") can easily think that the device is located, unless there are special circumstances such as (a) the technology already known or publicly known at the time of application for the registration of the device, which could have been easily designed by the party at the time of application for the registration; or (a) the elements associated with the device described in (a) through the procedure of application for the registration within the registered device fall under the category excluded from the scope of registration; and (b) the elements associated with the device are still within the registered scope (3) range of right.

In addition, in a case where a device is in a utilization relationship between a prior registered device and a subsequent registered device, the subsequent device shall belong to the scope of the right in the prior registered device. Such a utilization relationship is established by adding new technical elements to the technical composition of the prior registered device, and the subsequent device includes the substance of the prior registered device and uses it as it is, but the subsequent registered device maintains the unity of the device as a device (see Supreme Court Decision 92Hu1660, Dec. 5, 1995). This also applies to the case where the prior registered device uses an equal device as well as the same device as the prior registered device.

2. In light of the records, the registered device and (a) of this case is composed of 30 metric tons of powder to be installed at the end of loxine, 10 metric tons of powder to be removed from 20 metric tons by explosion, 20 metric tons of powder to be cut off from loxine, 10 metrics of powder to be cut off from 20 metric tons of powder, 20 metrics of powder to be cut off from 20 metrics of powder to be cut off from 20 metrics of powder to 20 metrics of powder so that powder explosion can not be distributed to spherton, 10 metrics of powder to be cut off from 10 metrics (10 metrics).

With regard to these differences, the composition of the detonating cap (400), which is separate from the fluor in the fluor in the fluor, is limited to the difference in shape, compared to the composition of the fluor in the registered device of this case as the fluor immediately after the fluor in the fluor. Even if the fluor is separated from the fluor, the fluor is substantially identical with the registered device of this case in that the fluor of this case and its purpose and operation effects are de facto identical, and whether the fluor should be formed separately from the fluor in the fluor of the fluor in the fluor, and thus, the difference in composition should be deemed to be equal to each other.

(A) Unlike the instant registered device, the composition of a unit of a unit without combining the de facto upper part with a separate caps (14). Even if the de facto upper part of the upper part of the upper part of the upper part of the upper part of the upper part of the upper part of the upper part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the case, if the upper part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the case, the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part of the lower part.

The ground of appeal asserts that the registered device of this case contains a difference that can reuse total eggs, unlike the (a) device. However, since the latter part of the registered device of this case becomes a detonating cap (10) and the detonating cap (420) is installed in the said detonating cap, even if it is possible to reuse if only the instant registered device is changed after the total eggs are used, there is no statement about reuse in the specifications of the instant registered device, and even in the (a) device, it is combined with the method that the detonating cap (400) can be replaced after the use of the total eggs, and it is difficult to view such difference as an effective difference as a difference in the effect.

Furthermore, it is reasonable to view that (a) the composition of the skin tons, which allows the maximum amount of the remainder in the device to be distributed twice, is added to new technical components compared to the ston of the registered device of this case. Ultimately, as seen above, the (a) device includes the same device as it is, and thus, falls under the scope of the right in the registered device of this case. This is also the same even if (a) device is patented.

3. The court below's decision to the same purport is just, and there is no error of law such as misunderstanding of legal principles as to the scope of rights in the registered complaint, or misunderstanding of facts as to the registered complaint.

The grounds of appeal disputing this issue are rejected.

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 Lee Jin-hun (Presiding Justice)