[1] Criteria for determining "the identity of a bill" under Article 4 (3) of the former Utility Model Act

[2] The case holding that a registered device and an earlier application device, used as a framework of a vinyl house for agricultural purposes, constitute the same device within the same scope as the connecting hole for the sloaks, which continuously connects a vinyl house and a vinyl house to the same effect as the connecting hole for the sloaks, within the same scope

[1] In determining the identity of a device under Article 4 (3) of the former Utility Model Act (amended by Act No. 4596 of Dec. 10, 1993), the technical composition of both devices shall be determined on the basis of whether the technical composition of the two devices is the same, and the effects of the device shall also be taken into account. Even if the technical composition is different, if the difference is merely a minor difference to the extent that there is no new effect due to addition, deletion, modification, etc. of widely known technology in the specific means for solving the task, the two devices shall be deemed the same.

[2] The case holding that a registered device and an earlier application device, used as a framework of a plastic greenhouse for agricultural purposes, constitute the same device within the same scope as the composition and action effect of the connecting hole for the sloaks, which continuously connects the vinyl and the vinyl, within the same scope

[1] Articles 4(3) and 32 (see current Article 5(3) of the former Utility Model Act (Amended by Act No. 4596, Dec. 10, 1993); / [2] Articles 4(3) (see current Article 5(3)) and 32 (see current Article 49) of the former Utility Model Act (Amended by Act No. 4596, Dec. 10, 1993);

[1] Supreme Court Decision 89Hu179 delivered on January 23, 1990 (Gong1990, 529) Supreme Court Decision 90Hu1154 delivered on January 15, 1991 (Gong1991, 754) Supreme Court Decision 93Hu824 delivered on January 11, 1994 (Gong1994, 720), Supreme Court Decision 93Hu1926 delivered on May 12, 1995 (Gong195Sang, 195Sang, 391), Supreme Court Decision 94Hu487 delivered on December 12, 1995 (Gong196Sang, 391), Supreme Court Decision 298Da2815 delivered on October 12, 1996 (Gong2815, Feb. 15, 2015)

Plaintiff (Patent Attorney Lee In-bok, Counsel for the plaintiff-appellant)

Defendant (Patent Attorney Yang Jae-soo, Counsel for defendant-appellant)

Patent Court Decision 200Heo6417 delivered on April 13, 2001

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

1. The court below held that the plaintiff's registered device of this case (the application on February 11, 1993, the registration on April 9, 1996, and the utility model registration number omitted) concerning "a pipe conclusion tool" used as the framework of a vinyl for agricultural use (the term "the composition of this case" hereinafter) was composed of "a "a pipe formation" and "a pipe formation of a pipe pipe hold" on the right side of the body body of the concluded body of the steel board (the term "the first composition of this case") and "a pipe formation was made at the center of the body body of the concluded body" and the "a pipe formation was made at the center of the body of the concluding body" (the "second composition of this case"). The court below held that the application of this case was made on the premise that the upper part for cutting down between U-types was made on the top of June 8, 1992 and another device publicly announced on April 19, 196 of this case (hereinafter referred to as "the second composition of this case").

A. Preparation for the composition of the first case and the earlier application

The First Composition of this case is a component corresponding to the formation of a subdivision with a pipe attached to the peltop of the body of the earlier application. The two devices correspond to the formation of a peltop or a emblem with a pipe attached to the body side of the body. However, there is a peltop in the body side of the instant registered device (a small hole) while there is no hole in the peltop of the earlier application, while the peltop in the peltop of the pipe inside the earlier application is put into a pipe, while the peltop of the instant registered device of this case is put into a pipe, compared with the fact that the peltop in the peltop inside the pipe, the peltop of the earlier application is put into the peltop of the pipe, so the conclusion of the registered device of this case can not be seen as having any technical meaning of the peltop and thus, it can not be seen as having any technical meaning of the peltop inside the pipe.

B. Preparation against the second composition of this case and the earlier application

The second composition of the earlier application is in response to the formation of a fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluorial fluoral fluorial fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluoral fluor.

C. Ultimately, the registered device of this case is formed with a conclusion factory and a strike, which is an element that does not exist in the earlier application application application, and there is a difference between the two devices, such as shacking a pipe or a peltoping a peltop, or the pelping method. Due to such a difference, the registered device of this case does not appear in the earlier application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application application of this case is not identical with both devices. Thus, the registered device of this case cannot be deemed to have been erroneous

2. However, we cannot accept the judgment of the court below.

A. Determination of the identity of a device under Article 4(3) of the former Utility Model Act shall be made on the basis of whether the technical composition of both devices is the same, and the effects of the device shall also be taken into account. Even if there is a difference in the technical composition, if the difference is merely a small difference in the degree that there is no new effect due to addition, deletion, modification, etc. of widely known and known technology in specific means for solving the task, the two devices shall be deemed the same (see Supreme Court Decision 2000Hu255, May 17, 2002, etc.).

B. However, according to the records, the scope of the claim for registration in the instant registered appeal cannot be deemed to have limited to the conclusion tool connecting the crossing pipe installed at the center of a vinyl, and the pipe pipe cannot be deemed to have been limited to the conclusion tool connecting the pipe pipe installed at the center of a vinyl, and it is reasonable to interpret that the scope of the claim for registration in the instant registered appeal cannot be deemed to include the interlocking pipe connecting the vinyl with the vinyl pipe continuously, such as the filing device of the earlier application, including the interlocking pipe connecting the vinyl with the vinyl pipe continuously. As such, in preparation for both devices on the premise that the pipe conclusion tool in the instant registered appeal is used as the

(1) In comparison with the body of the instant registered device and the main body of the earlier application, each of the technical features of the instant registered device are as follows: (a) the same material of the pipe conclusion device is identical to the material of the pipe conclusion device in the instant registered device; and (b) the same as the blank inside the instant registered device is identical to the blank inside the instant registered device; and (c) the structural features of the instant registered device are to be followed with the insertion in which the pipe pipe inside the earlier application is inserted and fixed with the pipe inside the instant registered device; and (d) the technical characteristics of the instant registered device are to facilitate the coordination of the erobrity between the insertion branch and the pipe joints; and (b) so, there is a sufficient space space corresponding to the dispatched part of the instant registered device in the instant registered device, even in the instant registered device, there is the same composition as that of the instant registered device.

However, unlike the earlier application device, unlike the earlier application device, it is necessary to polym the conclusion hole, but this is intended to fix the kis formed in the body body body to enter into or to enter into a contract with the kisium in the shape of the body. These fixed means themselves are not only widely known and commonly used technologies, but also, if the vinyl structure is shakend by external force, such as the main action effect within the instant registration device, wind, etc., the effect of kising the shock power and returning to the original body flexibly and flexibly, is mainly deemed to have been generated from the composition of the body body and the body body, and it is difficult to view that such effect is increased by the fixed means of conclusion and conclusion. Thus, the addition of the above well-known and commonly used technologies is nothing more than a difference in the extent that there is no new effect.

Therefore, the body inside the registered body of this case and the body in the earlier application are substantially identical.

B. In comparison with the U-type conclusion between the instant registered petition and the U-state type conclusion of the earlier application, both parties are the same composition with the same function and effect in that they conclude and fix the pipe on the body or the main body of the body.

Article 22(1) of the Civil Act provides that “The filing of the instant registration complaint and the filing of the earlier application shall be made within the same scope of the composition and effect as the connecting tool for the clock, which connects the vinyl and the vinyl continuously, and thus, the two devices shall be deemed identical.”

C. Nevertheless, the court below held that the registered device of this case is identical solely on the grounds as seen earlier, on the ground that there is a difference in the composition of part of the earlier application’s prior application’s prior application’s filing and that there is a new effect that may not appear or appear in the earlier application’s filing, and thus, it cannot be deemed that both devices are identical. In so doing, the court below erred in the misapprehension of legal principles, such as incomplete deliberation on

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-woo (Presiding Justice)