(영문) 서울고등법원 2011.1.18. 선고 2010누21626 판결

The defendant's disposition of extending the period of protection of new electric technology against the defendant's Intervenor (hereinafter referred to as "the intervenor") on December 30, 2009 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. The Defendant issued a disposition to designate new technology as C on the following technology as requested by the Intervenor pursuant to the Electric Technology Management Act (hereinafter referred to as “the instant technology”)

D This designation number: E

-New technology developer: Intervenor

New Technology Contents and Scope

- The method of brain protection using both a two-way air band low-carbon band low-carbon band low-pollution bandrosiss (hereinafter referred to as “the first technology of this case”; hereinafter referred to as “the second technology of this case”) bandr air bandrifine bandr low-carbon bandr low-carbon bandr low-carbon bandrifines and bandrifter (hereinafter referred to as “the third technology of this case”).

New Technology Protection Period: Five years from the date of designation and public notice;

B. The Defendant received an application for extension of the protection period from the Intervenor at the time when the new technology protection period for the instant technology has expired, and notified the above application for extension, and heard the opinions of interested parties, including the Plaintiff, who engage in manufacturing and selling business such as the lightning prevention devices, following the FSC’s review, and issued a disposition to extend the period of protection of the instant technology for three years from January 4, 2010 to January 3, 2013 pursuant to the provisions of Article 6-2 of the Electric Technology Management Act and Article 7-6 of the Enforcement Decree of the same Act, based on the review that “the instant technology is recognized as extension conditions, such as quality verification, technological level, and utilization record” (hereinafter “the instant disposition”).

【Facts without dispute over the basis of recognition, entry of Gap evidence 1-1 to 6. Eul evidence 2, 3, and 22, and the purport of the whole pleadings

2. Judgment on the Defendant’s main defense

With respect to the plaintiff's lawsuit of this case seeking revocation of the disposition of this case, the defendant defense that the plaintiff is not the other party to the disposition of this case that there is no plaintiff's standing to sue to seek revocation of the above disposition. 2) The plaintiff is entitled to seek revocation of the disposition in case of infringement of legal interests protected by the administrative disposition of this case even by a third party, who is not the other party to the disposition of this case. The legal interests here refer to the grounds for the disposition of this case and the individual, direct, and specific interests protected by the laws and regulations of this case. However, according to Article 6-2 (2) and (3) of the Electric Technology Management Act and Article 7-4 of the Enforcement Decree of the Electric Technology Management Act, the new technology developer can claim usage fees for the new technology to the person who uses the new technology, and the person ordering the installation and repair construction of the electric facilities should reflect the new technology in the design of the electric facilities executed by the plaintiff, 2) the plaintiff who is an interested party to the manufacturing and sale of the power facilities of this case is subject to the plaintiff's opinion.

Therefore, the defendant's defense is without merit.

3. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

Since the instant technology failed to meet the requirements for quality verification and technological level among the requirements for extension of the period of protection of new technology under Article 7-6(2) of the Enforcement Decree of the Electric Technology Management Act and Article 6(2) of the Electric Technology Management Operating Guidelines, the instant disposition based on the premise that the said extension requirements are met is unlawful. In addition, given that the instant disposition was made based on the improved technology not on the technology at the time of the designation of new technology but on the improved technology

B. Relevant legislation

It is as shown in the attached Table related statutes.

(1) 낙뢰의 발생원인과 피뢰침의 원리가 뇌운(雲, 낙뢰를 발생하게 하는 구름)은 전하로 충전되어 있는데, 대체로 상단부는 양(+) 전하를 띤 얼음결정으로, 하단부는 음(-) 전하를 띤 물방울로 이루어져 있고, 정전기 유도현상에 의하여 뇌운 하단부에 가까운 대지(大地)는 양(+) 전하로 유도(誘導)되게 된다.나 뇌운의 크기가 커지고, 뇌운과 대지 사이의 거리가 가까워지면 뇌운과 대지 사이의 강력한 전기장(電氣場, electric field)이 형성되어 절연체(絶緣體, 전기가 통하지 않는 물체)인 대기(大氣, atmosphere)에서 방전현상이 발생하게 되는데, 뇌운에서 대지 방향으로 음(-) 전하가 내려오는 것을 Leader, 대지에서 뇌운방향으로 양(+) 전하가 상승하는 것을 Streamer라고 한다. Leader와 Streamer가 만나면 뇌운과 대지 사이에 대전류가 흐르면서 밝은 빛과 소리를 동반하게 되는데, 이를 낙뢰와 천둥이라 한다.

(다) 이러한 방전현상은 뇌운과 대지간에 전기장이 일정 수준 이하로 감소될 때까지 수차례 거듭되는데, 낙뢰가 발생한 대지 주변에는 막대한 크기의 뇌서지(surge, 급격하게 많은 전하가 흘러 들어오는 현상)가 발생되어 여러 피해가 속출되게 된다.라 이러한 낙뢰 피해를 예방하기 위하여 끝이 뾰족한 막대 형태의 피뢰침을 건물 위에 설치하게 되는데, 이는 뾰족한 부분에 많은 전하가 몰리고, 따라서 뇌운으로부터 발생한 전하의 흐름이 위 도전체로 쉽게 유도된다는 원리에 착안한 것이다. 뇌운으로부터 방출된 엄청난 규모의 음(-) 전하가 피뢰침으로 유도되고, 곧바로 피뢰침에 연결된 도선을 따라 그대로 대지에 흘러 들어감으로써 건물에 발생할 수 있는 낙뢰피해를 예방하는 것이 일반형 피뢰침(Franklin rod)의 원리이다.

(E) A non-traditional lightning system, different from a general lightning erosion, is comprised of ① CTS method, which is a method of weakening the electricity strings between brain and site surface so as not to fall into a place where a direct lightning is installed, and ② EES method, which is a method of releasing strings from the ground bribery system, to discharge strings early from the ground surface before a large amount of lightning occurs, etc.

(2) The content of the instant technology is a type of CTS technology, which is the 1st technology in the instant case, the 1st technology in the process of discharging the power plant in the TTS space.

로서, 피뢰침 본체와 절연된 정전유도체를 설치함으로써 피뢰침과 정전유도체 사이에서 코로나방전(기체방전의 한 형태로서, 한쪽이나 양쪽의 전극이 뾰족한 모양일 때 그러한 극 부분의 전기장이 강해져 국소적인 방전현상이 일어나는 것)을 효율적으로 유도하여 뇌운과 피뢰침 사이의 전기장의 세기를 감소시켜 직격뢰를 차단하는 것이 주된 특징이다.나 이 사건 제2기술 탄소 저저항 접지 모듈(OMNI G Series)인 이 사건 제2기술은, 탄소를 주성분으로 하는 재질의 접지봉으로써, 피뢰침을 통하여 들어온 전하를 대지로 흘려보내는 역할을 한다. 접지를 위하여 사용되는 접지봉은 기존에도 존재하였으나, 이들은 철, 구리 등의 재질로 되어 있어 가격이 비싸고 상대적으로 접지 성능이 떨어졌는데, 위 기술은 주성분을 탄소로 함으로써 접지 저항을 낮춘 것이 주된 특징이다.다 이 사건 제3기술 이 사건 제3기술인 '쌍극자 공간전하 방전분산형 피뢰침과 탄소 저저항 접지모듈 및 서지 프로텍터를 이용한 뇌 보호 공법'은 ①낙뢰를 밀어내는 쌍극자 피뢰침, ②유도뢰를 차단하기 위한 서지 프로텍터, ③전위를 낮추고 노이즈와 서지의 근본원인을 제거하기 위한 등전위 공통접지를 설계단계부터 함께 하는 공법으로서, 기존에 위 각 기술을 나누어서 설계·시공하였을 경우에 나타나는 문제점을 보완하기 위한 것이다.

【Non-contentious facts, Gap evidence 1-1, the purport of the whole pleadings

D. Determination

(1) Article 6-2(3) of the Electric Technology Management Act provides that the criteria for the examination of the extension of the period to protect new technology, the method and procedure for the designation of new technology, the details of protection, usage fees, protection period, utilization method, etc. of new technology shall be prescribed by Presidential Decree. Accordingly, Article 7-2(1) through (3) of the Enforcement Decree of the Electric Technology Management Act provides that the Minister of Knowledge Economy shall determine whether the technology applied for is a new electric technology through the examination, etc. conducted by an exclusive institution prescribed by Ordinance of the Ministry of Knowledge Economy with regard to whether the technology is a new electric technology. Article 7-6(5) provides that the detailed operating rules on the criteria and procedure for the evaluation necessary for the designation of new electric technology shall be determined and publicly notified by the Minister of Knowledge Economy, and Article 7-6(2) of the Electric Technology Management Operation Guidelines publicly notified by the Minister of Knowledge Economy shall apply mutatis mutandis to the extension of the period to protect new technology.

(2) In full view of the Intervenor’s performance records, their effects, and other circumstances acknowledged by the entire purport of each of the statements and arguments set forth in Nos. 1, 3 through 8, 23, 25 through 27 (Ga number omitted) as to whether the instant technology satisfies the quality verification requirements, the instant technology is deemed to meet the quality verification requirements, which are the review criteria for the extension of the new technology protection period, and the evidence submitted by the Plaintiff alone is insufficient to reverse it.

① The Intervenor constructed a total of 419 mine facilities using the instant technology from 2006 to 2009, which was the time of the instant disposition, after the said new technology was designated and disposed of.

② 참가인은 이 사건 기술에 의한 피뢰시설 시공 이후에 낙뢰로 인한 사고가 발생한 경우 그 피해를 보상하는 내용의 생산물배상책임보험에 가입하였는데, 2002, 10, 15.부터 이 사건 처분시까지 낙뢰피해가 발생하여 보험금이 청구된 예가 전혀 없었다. 참가인으로부터 이 사건 기술을 이용하여 피뢰시설을 시공 받은 대전지방기상청, 청와대, 공군제1전투비행단, 문경시수도사업소, 공무원연금공단 천안상록리조트에서는 위 시공 이후 종전에 비해 낙뢰피해가 현저히 줄어들었다. 다만 이중 대전지방기상청과 천안상 록리조트에 낙뢰사고가 발생한 적은 있으나, 직격뢰가 아닌 유도뢰에 의한 피해이고, 그 피해정도도 경미하여 보험금을 청구할 정도가 아니었다. ③. 원고가 이 사건 기술의 품질검증 요건이 미비되었다는 취지로 제출한 증거들인 갑 제2호증, 갑 제12 내지 16호증, 갑 제19호증, 갑 제28호증의 각 기재 내용은, 갑 제1호증의 1, 을 제12호증, 을 제23호증의 1의 각 기재에 비추어 보아, ESE 방식에 관한 것이거나 다수의 뾰족한 침을 사용하여 침전극방전을 일으키는 종래의 CTS 방식에 관한 것일 뿐이지, CTS 방식을 채택하였지만 종래의 CTS 방식의 문제점을 극복하기 위해 고안된 이 사건 제1기술에 관한 것이 아니다. 뿐만 아니라 앞서 본 이 사건 기술을 사용한 피뢰시설의 실제 시공실적 및 그 효과와 을 제16호증, 을 제23호증의 2의 각 기재 등에 비추어 보면, 위 증거들만으로는 이 사건 기술이 위와 같은 시공실적 및 그 효과에도 불구하고 기술의 성능 및 효과가 검증되지 못한 기술이라고 보기 어렵다.

(3) Whether the instant technology satisfies the requirements for technological level

In full view of the facts acknowledged earlier, Gap evidence Nos. 3, Eul evidence Nos. 3, 17 through 19, 21, 28 through 30, and 32 through 35 (tentative number omitted) and the following circumstances recognized by the overall purport of the pleadings, the technology of this case seems to be "a technology recognized as excellent compared to the level of domestic and foreign technology, i.e., the criteria for the examination of the extension of the new technology protection period," and the evidence alone submitted by the plaintiff is insufficient to reverse it.

① As seen earlier, the Intervenor constructed a large number of lightning facilities using the new technology of this case, and there was no case in which the amount of mine damage was significantly reduced compared to the previous one after the construction, and there was no case in which the insurance money from lightning damage was claimed.

② On April 209, 2009, the Intervenor awarded gold prize and a Russ special prize with the instant mine technology. On April 27, 2010, the Intervenor obtained performance certification from the Administrator of the Small and Medium Business Administration pursuant to Article 15 of the Act on Promotion of Purchase of Small and Medium Products and Development Support, and on August 25, 2010, was designated as an excellent product pursuant to Article 9-2 of the Government Procurement Act. (3) The Korea Electricity Research Institute, as a result of its implementation of the 2nd-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-6th-7th-6th-7th-7th-7th-7th-7th-7th-7th-7th-7th-7th-7th-7th-7th-7th-7th-7th-7th-200.

④ The Intervenor filed and registered a number of patents prior to or after the designation and disposition of new technology regarding all the technologies of the instant No. 1, 2, and 3. According to the evidence No. 24, among the patents related to the instant No. 2, the Intervenor could have known that the patent indicated in the claim No. 9 of the claim No. 2 was rendered in the Intellectual Property Tribunal on April 1, 2010, but it was only invalidated on the ground that it was not supported by the detailed explanation, rather than by the ground for lack of newness and non-obviousness.

⑤ According to the evidence evidence Nos. 9 and 22, following the aforementioned new technology designation disposition and the patent registration of the second technology of this case, the intervenor filed a complaint against the Intervenor against the violation of the Patent Act by generating and selling the shot paper bars in a similar way with respect to the Plaintiff. However, on May 27, 2008, the non-prosecution disposition was rendered on the ground that the production method and the composition mixing rate of the shot paper bars differs from each other, and the application for a ruling was dismissed. However, the J Research Institute, as a result of the shotum examination on the shot paper on December 2, 2008, can be known by each of the evidence Nos. 21, 34, and 35. In other words, it is difficult to view that the shot paper under the second technology of this case had higher carbon ratio than the shot paper of the shot paper of the shot paper than the shot paper of the shot paper.

(6) The evidence submitted by the Plaintiff that the quality verification requirements of the technology of this case were not satisfied, and the content of Gap evidence Nos. 17 and 18 with respect to the existing CTS method, not with respect to the technology of this case. Furthermore, even if the evidence submitted by the Plaintiff that the value of the mine bed and the carbon bed is not economical compared to other lightnings or the carbon bed, it is difficult to view that the technical level of the technology of this case is not excellent solely on the ground that the mine bed and the carbon bed are not sealed by using the technology of this case, and it is difficult to conclude that this is non-economic in light of the Intervenor’s many execution cases and its effects using the above technology as seen earlier, and it is difficult to conclude that this is non-economic in light of the Intervenor’s many execution cases and its effects using the technology of this case, based on the above evidence, it cannot be deemed that the technical level

(4) The Plaintiff whether the instant disposition was unlawful on the basis of the improved technology, and the requirements for the extension of the new technology protection period should be determined on the basis of the technology at the time of the designation of the new technology. The instant disposition was made on the basis of the technology improved after the designation of the new technology, and thus, the said disposition was unlawful.

The issue of whether the requirements for the extension of the protection period for new technology of this case constitutes a new technology should be determined on the basis of the technology originally designated as the new technology, but the defendant may consider the matters improved thereafter within the scope recognized as identical, and even if so, it can be deemed that the FF Commission examines and determines the extension of the protection period for the technology originally designated as the new technology at the time of the disposition in this case. However, according to the evidence Nos. 3 and 22, the FF Commission examined at the time of the disposition in this case, and accordingly, it can be recognized that the technology for which the defendant extended the protection period for the new technology was merely partially improved while maintaining the concept elements of the technology in the first, second, and third cases originally designated as the new technology in this case. Thus, even if the defendant considered these circumstances at the time of the disposition in this case, it is not unlawful

(5) Sub-committee

The instant disposition is lawful, and the Plaintiff’s assertion that the instant disposition is unlawful, as it did not meet the quality verification requirements or the technical level requirements or considered improved technologies during the extension period of the new technology protection period, is without merit.

4. Conclusion

The claim of this case must be dismissed because there is no reason to do so, and the judgment of the court of first instance is unfair, and the defendant's appeal is reasonable, and it is so decided as per Disposition with the above appeal accepted.