[1] Method of determining the scope of the right of the utility model right or the actual scope of protection

[2] The case holding that a registered device does not fall under the scope of the right in the registered device whose name is "regular collection and withdrawal device"

[3] Whether an exclusive licensee of a utility model right may file a petition to confirm the scope of a patent right (negative)

[1] In principle, the scope of a utility model right or the substantial scope of protection shall be determined based on the matters described in the claims of a specification attached to an application for registration of a utility model. However, in cases where the technical composition of a utility model is unknown or it is impossible to determine the technical scope even if the description is known, a supplement may be made by other descriptions in the specification, but an extension of the scope of a utility model right shall not be permitted by other descriptions in the specification.

[2] The case holding that (a) where the registered device with the name of "regular receiving device" is in its original form, and the (a) device is in the shape that combines the two-dimensional shape with the two-dimensional shape, and thus the drum of the (a) device cannot be deemed as a form and structure that are identical to the "drum of the combined shape" in the registered device, and thus (a) device does not fall under the scope of the right in the registered device

[3] Article 50 of the Utility Model Act provides that "the owner of a utility model right or an interested person may request a trial to confirm the scope of a registered utility model right to confirm the scope of protection of the registered utility model," and it cannot be deemed that an interested person includes an exclusive licensee of the utility model right.

[1] Articles 9(4), 42, and 50 of the Utility Model Act; Article 97 of the Patent Act / [2] Articles 9(4), 42, and 50 of the Utility Model Act; Article 97 of the Patent Act / [3] Article 50 of the Utility Model Act

[1] Supreme Court Decision 95Hu1050 decided Dec. 6, 1996 (Gong1997Sang, 207) Supreme Court Decision 96Hu1040 decided Apr. 10, 1998 (Gong1998Sang, 1361), Supreme Court Decision 98Hu2351 decided Nov. 14, 200 (Gong2001Sang, 65), Supreme Court Decision 98Hu2856 decided Jun. 1, 2001 (Gong201Ha, 1539)

Dabmerdi Co., Ltd. (formerly: Co., Ltd., Ltd., Ltd.) (Law Firm Mad Co., Ltd., Counsel for the plaintiff-appellant-appellant)

Gaba Doz. and one other (Law Firm Dan, Patent Attorney Woo-man et al., Counsel for the plaintiff-appellant)

Patent Court Decision 200Heo8444 delivered on October 26, 2001

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The judgment of the court below

According to the reasoning of the judgment below, the court below determined that the plaintiff's (A) device falls under the scope of the right of the registered complaint of this case for the following reasons, although the defendants' appeal of this case does not fall under the scope of active confirmation of scope of right of the so-called right of the so-called right, and the registered complaint of this case (registration number No. 94437) using the name "regular collection and delivery device" was not publicly notified by the cited complaint of this case prior to the application.

A. The registered device of this case and the (a) design of this case are installed at the drum (the emission price of a drum (a) device) outside the drums (the drum of a drum (a) device) which can be revolving the device in a multi-level manner that the drum (the drum of a drum (a) device) has the required level and is attached to the upper direction, and the drums form a window (the emission price of a drum device) which is connected with the drum (a) apparatus of a drum (the drum), and that the drum (the drum of a drum device) for the collection of drums is installed at the lower end.

B. However, the registered device of this case, however, is the full original form of the drum, more than that of the drums, (a) where the two sides of the drums come well into the left-hand forum and the right-hand forum, thereby maintaining a certain space, thereby maintaining a whole space, and fixing the auxiliary drums of the drums into the connecting drums and the drums on the side of this drums (hereinafter referred to as the drums 1), while the registered device of this case is installed at the same time as the drums for collecting the drums, the (a) device of this case is installed by dividing them into two separate drums and fixed drums (hereinafter referred to as the drums 2) and the equipment of this case is installed at the same time as the drums of the drums of this case (hereinafter referred to as the drums of this case) which are not clear that the drums of this case are installed in the drums of this case.

C. Regarding the difference 1, the term "public health room" is generally referred to as an empty space as a dunes and tension, and the term "original drum" and "drum" have the same technical meaning, and the term is not limited to those constituting a complete original body, and the detailed description of the proposed registration of this case also refers not only to the original body whose part is separated as the second implementation, or the outer drum or the outer drum. In particular, it is meaningful to make it possible to establish a drum which is formed at the same distance from the central axis, and it is also meaningful to make it possible to make the structure of the drum which is formed in a way that can be integrated into a single drum that is established in a way that does not have the right side of the proposed registration, and it is also reasonable to interpret the two drums as a whole as a single drum which is composed of the two drums in the shape of this case as well as a single drum which is composed of the two drums in the form of this case.

D. (A) The auxiliary forum in the shape of a heading device is fixed to the Coordinate and friendly fordrums by connecting it with a pans and blofts, which is one of the pans and friendly fordrums, but it has an inherent effect to allow more number of dynamics to be attached, and the shape of the heading cannot be seen as falling under the shape of the same meaning as seen above. Thus, it is an additional composition that can be grasped separately from the drum consisting of the pans and friendly fordrums.

E. As to the difference 2, the gate of (a) device corresponding to the 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's '' is equal to the 's 's 's 's 's 's 's 's 's 's 's ''' which is added to one 's 's 's 's '' in order to send the collected 's 's 's 'ss 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's 's ''s '' in the registration '.

F. In full view of the differences between the registered device of this case and the common point and the (a) device of this case, if the (a) device contains all the essential components of the registered device of this case, and has auxiliary fordrums, signboards, and revolvings, which are not inside the registered device of this case, as additional components, and thus falls under the (a) device of this case, within the scope of the right to the registered device of this case.

2. The judgment of this Court

However, we cannot accept the judgment of the court below for the following reasons.

A. First, the scope of the right of a utility model right or the substantial scope of protection is determined by the matters described in the claims of the specification attached to the application for registration of a utility model. However, if the technical composition of the utility model is unknown or it is impossible to determine the technical scope even if the description alone is known, it may be supplemented by other statements in the specification. However, even if the technical scope cannot be determined, the expansion of the scope of the utility model right is not allowed by other statements in the specification (see Supreme Court Decisions 96Hu1040, Apr. 10, 1998; 9Hu2150, Apr. 12, 2002, etc.). According to the records, the term “humd forum in a common shape” means “the first request for registration is implemented without separation or open,” and it is inappropriate for the court below to consider the scope of the registration within the scope of the first request for registration as an independent material to be implemented within the scope of registration in light of the legal principles as described above.”

B. (A) In full view of the composition of a drum of the lower judgment’s text, the composition of the combination of marks (6), (7) and (11), [1] (6), (7) of the above drawings in the drums, and each of the signs (10) and (11) of the above drawings is drums as auxiliary drums, the lower court will follow the following: (a) the function or composition of the above drawings is an auxiliary drum; (b) the combination of the above drawings is operated closely connected to the combination on the same surface; and (c) the combination of drums with the above drawings is made of a narrow structure, and the shape and structure of the two drums with the shape and structure of the two drums, which are removed from the shape and structure of the two drums, and all of which are removed from the shape and structure of the two drums, where the whole drums combined with the two drums are removed from the shape and structure of the two drums.

C. Upon correcting the above error of the judgment below, the registered device of this case is in its original form, compared with the drum of the "drum of the form and shape" of the registered device of this case, and compared with the drum of the (a) device of this case. However, the (a) device of this case is in the shape of a drum with the drums combined with the drums. Thus, the drum of the (a) device of this case cannot be deemed as a form and structure identical with the "drum of the form and shape" of the registered device of this case, and thus, (a) device of this case is not in the relation where the drum of the (a) device of this case uses the same composition as the registered device of this case.

D. Nevertheless, the court below erred by misapprehending the legal principles as to the interpretation of the scope of the right to a utility model right and by failing to properly grasp the composition of the (a) device, which affected the conclusion of the judgment, and the ground of appeal assigning this error is with merit.

3. Meanwhile, ex officio, Article 50 of the Utility Model Act provides that "the owner of a utility model or an interested person may request a trial to confirm the scope of a right of a utility model to confirm the scope of a registered utility model." Among this, it cannot be deemed that an interested person is an exclusive licensee of the utility model right. As such, the part of the trial decision of this case against the above defendant among the trial decision of this case should be revoked as it is unlawful, and thus it is unlawful to dismiss the plaintiff's claim for the plaintiff's YOBC shock with excessive error of the judgment of the court below.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)