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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. (1) On September 30, 2015, the Defendant: (a) filed against the Plaintiff, the patentee, the Intellectual Property Tribunal; and (b) the claim 8 (hereinafter “instant claim 8”) of the instant patent invention against the Plaintiff.
(i)a person with ordinary knowledge in the technical field to which the invention pertains (hereinafter referred to as “ordinary technician”);
(2) On May 13, 2016, the Intellectual Property Trial and Appeal Board rejected the Defendant’s appeal on the ground that the nonobviousness of the instant Claim No. 8 was not denied on the grounds that the nonobviousness of the instant Claim No. 8 was not denied (hereinafter “previous trial decision”).
3) On June 7, 2016, the Defendant filed a lawsuit seeking the revocation of the previous trial decision with this court (No. 2016Heo4030). On October 13, 2016, this court held that “The Claim 8 invention of this case is subject to revocation of the previous decision by combining the prior invention 4 with the prior invention 3 or the prior invention 3 with the prior invention 10-40576 described in the registered Patent Gazette No. 10-40576, Nov. 4, 2003, the prior invention 4 with the “development of wait manufacturing method and its use containing the micro-organism accelerator as its principal ingredients” described in the registered Patent Gazette No. 101-24741, Sept. 11, 2001, the prior invention 5 with respect to “the prior invention” described in Article 201-2441 of the Japanese Patent Gazette, and the prior invention 1 with respect to the prior invention 204-241.”
(4) As a result of the Plaintiff’s failure to file an appeal against the revocation judgment with the Supreme Court, the revocation judgment became final and conclusive as it is.
5) As the above revocation judgment becomes final and conclusive, the Korean Intellectual Property Trial and Appeal Board rendered by the defendant 2016 Appeal (Re-appealed by the revocation judgment No. 135) on December 15, 2016.