[1] The degree of expression of the design subject to the determination in determining the similarity or similarity of the design

[2] The purpose of the ex officio examination of evidence under Article 116 (1) of the former Patent Act which is applicable mutatis mutandis by Article 53 of the former Design Act

[3] The degree of objective creativity required by the Design Act

[4] Method of determining whether a design is identical or similar to a design, including a publicly known shape part

[1] In determining the similarity of the design's newness or the prior design, the Speaker who is the subject of the determination may supplement not only the Speaker who has clearly clarified the whole form, but also the lack of material to express it in accordance with the rule of experience to the extent possible to grasp the summary of the Speaker. However, if the cited design alone is not enough to grasp the summary of the Speaker, the preparation decision may not be made.

[2] According to Article 116 (1) of the former Patent Act (wholly amended by Act No. 4208 of Jan. 13, 1990), which is applicable mutatis mutandis by Article 53 of the former Design Act (wholly amended by Act No. 4208 of Jan. 13, 1990), an inquiry may conduct an examination of evidence upon request or ex officio. However, this does not necessarily mean that an ex officio examination of evidence should be conducted in all cases.

[3] The objective creativity required by the Design Act is not only a unique feature that is identical or similar to the past or present, but also a combination of an aesthetic device that gives a new aesthetic impression to the inventor in the past and present, and it is sufficient in its entirety to the extent that it is recognized as an aesthetic value different from the previous design.

[4] In determining the same or similar design, each element of the design should not be prepared separately, but should be determined by the aesthetic sense that a person sees by preparing, observing, and observing as a whole. Even if there is an official announcement part among the elements, if such part does not constitute a special aesthetic sense, it should be determined by the rectangular aesthetic sense, including that part, unless it is so long as it does not cause a special aesthetic sense.

[1] Articles 5 (1) and 8 of the Design Act / [2] Article 53 (see current Article 72 of the Design Act), Article 116 (1) (see current Article 157 (1)) of the former Patent Act (wholly amended by Act No. 4208, Jan. 13, 1990); Article 5 (2) of the Design Act / [3] Article 5 (1) of the Design Act / [4] Article 5 (1) of the Design Act

[2] Supreme Court Decision 86Hu6, 12 delivered on January 17, 1989 (Gong1989, 301) Supreme Court Decision 91Hu1595 delivered on March 31, 1992 (Gong1992, 1436) Supreme Court Decision 92Hu2090 Delivered on May 11, 1993 (Gong1993Ha, 171) / [3] Supreme Court Decision 90Hu1536 delivered on March 12, 1991 (Gong1991, 1186), Supreme Court Decision 91Hu288 delivered on November 8, 194 (Gong1992, 1193) and Supreme Court Decision 93Hu1939 delivered on June 14, 1994 (Gong19494 delivered on June 194, 194)

Rove boiler Co., Ltd. (Attorney Jeong-soo et al., Counsel for the defendant-appellant)

Patent Attorney Impeach et al. (Patent Attorney Lee Im-soo, Counsel for defendant-appellant)

Korean Intellectual Property Office Decision 90 No. 438 dated December 19, 1992

The appeal is dismissed. All costs of appeal are assessed against the claimant.

The grounds of appeal are examined.

1. As to the part of Article 75 of the Design Act (amended by Act No. 4894 of Jan. 5, 1995) which applies mutatis mutandis Article 186(1) of the Patent Act (amended by Act No. 4892 of Jan. 5, 1995), Article 186(1) of the Patent Act (amended by Act No. 4892 of Jan. 5, 1995), the above Act does not conform with the Constitution, but the above provision does not conform with the Constitution. However, the amended Act of the Patent Act (amended by Act No. 4892 of Jan. 5, 1995; Act No. 4894 of Jan. 5, 1995) and the Design Act (amended by Act No. 4894 of Jan. 31, 1998). The part of the grounds for appeal assigning this error is without merit.

2. In determining the similarity of design's newness or similarity with prior design, the Speaker who is the subject of the judgment can make up not only the Speaker who clearly made all forms clear, but also the lack of materials to express it in accordance with the empirical rule to the extent possible to grasp the summary of the Speaker. However, if the cited Speaker cannot understand the summary of the Speaker, a preparation decision may not be made. However, according to the records, the quoted design, which was attached to the boiler evidence No. 3, submitted by the claimant as public notice, can not be made if it is impossible to grasp the summary of the Speaker. However, the quoted design, which was attached to the boiler evidence No. 3, presented by the claimant as public notice, is in the color, and it is difficult to fully grasp the whole shape and shape of the inseminator tank, which is the product expressed by the Speaker of this case. Accordingly, the fact-finding and decision of the court below to this purport is just, and there is no violation of law

In addition, according to Article 116 (1) of the former Patent Act (amended by Act No. 4208 of Jan. 13, 1990), which is applicable mutatis mutandis by Article 53 of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990), an examination of evidence may be conducted upon request or ex officio in a trial, but this does not necessarily mean that an ex officio examination of evidence should be conducted in all cases. The responsibility for the submission of materials, such as publicly notified evidence, lies on a claimant who claims the invalidation of a registered design. Thus, the applicant is not obligated to ex officio examination of the whole form and shape of the quotation of evidence No. 3, and the relevant grounds for appeal cannot be accepted.

3. The objective creativity required by the Design Act is not limited to a unique device that is not identical or similar to the past or present, but rather a device that combines an aesthetic device that gives a new aesthetic impression to a designer, and is of an aesthetic value different from the previous Speaker in its entirety (see Supreme Court Decision 93Hu961 delivered on June 14, 1994). In determining the same or similar element of a design, the determination shall be made according to the aesthetic sense that people see the overall comparison and observation, not by separating in part each element constituting the design, but by comparing and observing in whole. Even if there is an official announcement part among its elements, if the part does not cause a special aesthetic sense, it shall be made according to the overall aesthetic sense, including the part, unless it is so determined (see Supreme Court Decision 90Hu6363 delivered on June 14, 191).

In light of the records, the court below is just in holding that the registered design of this case is a separate design that causes a person who is deemed to be equipped with objective originality as required by the Design Act by combining a new aesthetic device based on the past and present idea, and that it does not contain any error of law such as incomplete deliberation, etc. as pointed out in the ground of appeal, and even if this part is not a major part of the design, it cannot be deemed as not an element causing a special decorations, since the registered design of this case is a public announcement of the shape of a brand, as it is pointed out in the ground of appeal in the ground of appeal, even if this part is not a major part of the design, it cannot be seen as an element causing a special decorations. Therefore, the court below's decision to this purport is justifiable. The ground of appeal cannot be accepted.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)