The case holding that there exists a cause for retrial under the Civil Procedure Act, in case where a trial decision on correction of the relevant patented invention has become final and conclusive while the court of final appeal rendered a judgment on invalidation.

Article 136(9) of the former Patent Act (amended by Act No. 4892 of Apr. 10, 1997); Article 451(1)8 of the Civil Procedure Act

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

Site Chemical Co., Ltd. (Patent Dan Patent Attorney Lee Dong-dong et al., Counsel for the plaintiff-appellant)

KSKK Co., Ltd. (Patent Attorney Ynam-hun et al., Counsel for the defendant-appellant)

Patent Court Decision 2006Heo2288 Decided January 12, 2007

The judgment below is reversed, and the case is remanded to the Patent Court.

According to the reasoning of the lower judgment, the lower court determined that: (a) claims No. 3 through (10) of the instant patent invention (patent No. 212963) of the Patent Act are not supported by a detailed description of the invention and thus ought to be invalidated.

However, according to the records, with respect to the claim(3) of the patented invention of this case, the decision of April 24, 2008, which permitted correction upon the plaintiff's request for a correction trial, was rendered on April 30, 2008, and the trial decision became final and conclusive on April 30, 2008, and it can be known that the claim(4) through (10) of the patented invention of this case is subordinate to limiting the composition of claim(3). Thus, all of the claim(3) through (10) of the patented invention of this case shall be deemed to have been registered in accordance with the specification after correction pursuant to Article 136(9) of the former Patent Act (amended by Act No. 4892, Apr. 10, 197).

Therefore, the judgment of the court below, which examined and judged the invalidity of the patented invention of this case before correction, is a ground for retrial under Article 451 (1) 8 of the Civil Procedure Act, and therefore, there is an error of law that affected the judgment, and the ground for appeal pointing this out is with merit.

Therefore, without examining the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)