Korea Special Design Co., Ltd. (Patent Firm New century, Patent Attorney Kim Jong-ap et al., Counsel for the defendant-appellant)

Defendant (Patent Firm Auyang, Patent Attorney Park Jin-jin, Counsel for defendant-appellant)

November 5, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The decision made by the Intellectual Property Tribunal on June 13, 2012 on the case No. 2015 is revoked.

1. Basic facts

A. The registered utility model of this case

(a) Name of the device: A device that returns feed for a vehicle transporting feed;

(2) Date of application/registration date/registration number: July 23, 2004/ October 11, 2004/ (registration number omitted)

(c) The owner of the utility model right: Defendant

(4) Claim(s) and main drawings: as described in [Attachment 1] (attached Form 1) (as corrected by the Intellectual Property Trial and Appeal Board No. 2012No. 83 on September 24, 2012, Claim(s) of the instant registered utility model is referred to as “instant registered utility model,” and the remaining claims are also described in the same manner).

(b) A device subject to verification;

The subject matter of confirmation is the Defendant’s specific “feed return device for feed transport vehicles,” and the description and drawings are as shown in attached Form 2.

C. Details of the instant trial decision

(1) On January 25, 2012, the Defendant filed a petition against the Plaintiff for the confirmation of the scope of right by asserting that the petition for confirmation falls under the scope of the right of the registered utility model under paragraphs (1) and (3) of this case.

(2) After having deliberated as the Patent Tribunal No. 2012Da215, on June 13, 2012, the Intellectual Property Tribunal rendered a trial ruling citing the instant request on the grounds that “the proposal subject to confirmation falls under the scope of the right in the registered utility model under paragraphs (1) and (3) of this case.”

[Grounds for recognition] The descriptions of Gap evidence 1 to 5, Eul evidence 1, 2, and 3, and the purport of the whole pleadings

2. The parties' assertion

A. Summary of the plaintiff's assertion

(1) The vehicles in the height subject to verification [Do 1] are in place with two pages corresponding to the front bank and the center tank fish, and there is no input (142) in the part corresponding to the last tank fish. On the contrary, the vehicles in the height subject to verification [Do 2] are three inputs corresponding to the three tank fish (111) installed in the horizontal transfer pipe (140) in the upper part of the storage tank tank, respectively, (142) in order to return the feed [Do 1] [1] in order to return the feed, the vehicles of the feed tower and the final storage tank of the feed tank and return the feed by directly connecting the feed to the tank fish of the feed tank, while the vehicles of the [Do 2] are not in conformity with the composition of the feed transfer supervisor connected with the feed transfer medicine, and there is no significant difference between the vehicle subject to verification and the container return].

(2) The registered utility model of this case under paragraphs (1) and (3) of this case should be invalidated inasmuch as the nonobviousness could not be easily achieved by a person with ordinary knowledge in the technical field to which the device pertains (hereinafter “ordinary engineer”) by means of comparative design 1 and week 1) 2, and thus, the registered utility model of this case cannot be recognized as the scope of right.

B. Summary of the defendant's assertion

(1) Even if there is a difference between the vehicle in [Do 1] and the vehicle in [Do 2] vehicle’s description of the number of pages of the vehicle in question, the vehicle in question [Do 1] vehicle in question [Do 2] is in fact the same with the vehicle in question as the vehicle in question in question in light of the purpose or effect that the registered utility model in paragraphs 1 and 3 of this case is “return of feed by one or more openings or closings.”

(2) In a trial to confirm the scope of rights, where the registered utility model is not new, the scope of rights is not recognized, but the scope of rights cannot be denied on the ground that the non-obviousness is nonexistent.

3. Determination

(a) Whether the proposal to be confirmed is specified;

(1) Criteria for determination

In principle, the scope of a patent right shall be determined by the matters described in the scope of a patent claim in the specification. However, where the technical composition of the patent is unknown or it is impossible to determine the scope of a patent even if the description alone is known, the scope of the patent right shall be determined as a whole by supplementing the description by other descriptions in the specification, such as the detailed description or drawing(s). However, even in such a case, it is not allowed to interpret or limit the scope of a patent by expanding the scope of the right by other descriptions in the specification(see, e.g., Supreme Court Decisions 96Hu1088, May 22, 1998; 98Hu2856, Jun. 1, 2001). Therefore, the confirmation invention subject to a request for a confirmation to confirm the scope of a patent right shall be identified based on the part of the confirmation invention subject to a request for a confirmation of the scope of patent right, and it is not allowed to understand the said part by modifying the above description by the drawing attached to the specification(s).

(2) Whether the subject matter is specified

The detailed description of the height subject to verification shall be prepared in accordance with the direction of 100 square meters [10 square meters (or 150 square meters) of the boom 16-1 square meters (or 20 square meters below) of the boom 16-1 square meters of the above boom 16-1 square meters (see evidence 17-4 square meters) of the boom 17-1 square meters of the above boom boom 14] of the boom 10-1 square meters of the boom 14th of the boom boom 14th of the boom boom boom 14th of the boom boom 2nd of the boom 2nd of the boom boom 14th of the boom boom 2nd of the boom boom 140th of the boom boom 140th of the boom 2nd of the 2nd of the 14th of the boom.

According to the above detailed explanation, a device subject to confirmation is respectively equipped with inputs (142) for response to the partitioned feed storage room (140). The feed tank can take advantage of different kinds of feeds for each storage room of the feed tank (142) from the feed tank to the feed tank at the time of returning the feed, and it can be seen that the return pipe is connected to the medicine tank (150), and the feed is being returned to the storage room of the hydrogen due to the vertical transfer boom and the horizontal transfer boom boom. Accordingly, the device subject to confirmation described in the above detailed explanation can be seen as a specific device to the extent that it can be compared to the registered utility model of this case.

In addition, the vehicle boom boom (140) shown in the height subject to confirmation [Do2], [Do4], while the vehicle boom boom (142) is in the area corresponding to the last side of the feed tank (100), the vehicle boom boom (142) is in the area corresponding to the storage room (see e.g., evidence 19 [Do2], 20 Do4], and the vehicle boom boom as shown in the height subject to confirmation [Do1] has not been placed in the area corresponding to the storage room (142) prepared in the last side of the feed tank (10) (see e.g., evidence 19 [Do1]).

B. Whether the Plaintiff implements a written appeal subject to verification

(1) Criteria for determination

Where a patentee requests an affirmative confirmation of the scope of a patent right that a certain product belongs to the scope of his/her patent right, if the claimant deems the identity between a particular product and a product being carried out by the claimant, the adjudication decision becomes final and conclusive that the product not carried out belongs to the scope of the patent right, but has no effect on the product being actually carried out by the claimant. Thus, a request for an affirmative confirmation of the scope of a patent right against the product not carried out by the claimant should be dismissed on the ground that there is no benefit of confirmation (see, e.g., Supreme Court Decisions 2002Hu2419, Jun. 10, 2003; 94Hu2247, Mar. 8, 1996). In this case, the identity between a particular product and the product being carried out by the claimant must be proved by the claimant.

(2) Whether a complaint for confirmation is implemented

The plaintiff is the person who manufactured and supplied three feed-transport vehicles in the area of the height subject to verification [Do 2] at the request of the feed-transport business operators around 2010, and the person who used feed-transport vehicles in the above [Do 2] used medicines as the passage for returning feed in the country). And the vehicle indicated in the height subject to verification [Do 2] is the same as the device specified in the device subject to verification as the device subject to verification. Accordingly, the plaintiff's implementation of the proposal for verification around 2010 can be recognized.

C. As to the Plaintiff’s assertion that the registered utility model under paragraphs (1) and (3) of this case is non-obviousnessless device

The Plaintiff asserts that the registered utility model under paragraphs 1 and 3 of this case is invalid due to lack of non-obviousness in relation to the comparison 1 and 2, and that the scope of the right cannot be recognized. However, even if the registered utility model is designed extremely easily by a person with ordinary knowledge in the technical field, the scope of the right cannot be denied as a matter of course in the adjudication to confirm the scope of the right unless the registered utility model is invalidated through the adjudication procedure (see Supreme Court Decision 2001Hu2375 delivered on December 26, 2002). According to the Plaintiff’s evidence No. 5 of this case, the Plaintiff’s assertion that the registered utility model was non-obviousness in relation to the comparison 1 and 2 of this case (see Supreme Court Decision 2011Hu12319 delivered on July 18, 2012) is no more than 10 of the registered utility model “10,010Da1010 delivered on the amendment and abolition 2 of the registered utility model.”

D. Whether the proposal for confirmation falls under the scope of the right to registered utility model under paragraph (1) of this case

(i)to prepare for technology and objectives;

The instant registered utility model and the instant device subject to confirmation are both related to the feed return device for the vehicle transporting feed, and their technical field are the same. Both devices can easily return feed by connecting the return pipe to the pharmaceutical medicine, and the purpose is to facilitate the return of feed to the feed tank by forming multiple openings and closing doors on the horizontal transfer pipe and facilitating the return of feed to the feed tank.

(2) Preparation for composition and effects

(A) Composition of the instant registered utility model No. 1

[Attachment 1] Claim 1. The registered utility model of this case is described in the claim 1.

(B) Composition 1

Paragraph 1 of this case’s registered utility model 1 of this case’s registered utility model is “in the case of a vertical transfer pipe (104) and horizontal transfer pipe (106), the back part of the feed tank (102), and a drug tank (104) connected with the vertical transfer axis (104), and a feed return terminal (104) for transporting feed.” This is “in the case of a feed tank with which multiple storage rooms for storing feed inside feed are partitioned and installed, and the above storage rooms are transferred to the lower part of the feed tank (102) so that the feed room stored in the above storage tank can be transferred to the feed tank (106) and the boom tank installed to be transferred to the 1st of the feed tank (105th of the above tank) and the boom tank installed to be transferred to the 20th of the above boom tank (100th of the above boom tank and the boom tank installed to be transferred to the 20th of the above boom tank (100th of the above boom tank).

The two compositions are identical in that it is composed of feed return devices for feed transport vehicles, which are equipped with feed tanks, vertical transport booms, horizontal transfer booms, medicine, and return pipes, and that the feed can be stored by returning the feed from the feed tower to the feed tank.

Therefore, the composition 1 of the registered utility model of this case and the response composition of the challenged design are the same.

(C) Composition 2

The composition 2 of the registered utility model of paragraph (1) of this case is "the normal return officer is connected to the feed tower (60) and the other is connected to the above drugs (108) and the return pipe (20) equipped with a return screen (22) that is moved back by the old means." The return pipe (170) within the area to be confirmed is a transfer pipe that is situated inside the air, which is installed connected to the inputs of the drugs (150) and correspond to the composition of "the other part is installed in connection with the entrys of the feed tower (16.2-4)" (No. 16.

The two compositions are linked to the feed tower, and the other team is identical in terms of the same composition in that the feed is returned by internal transport straws connected to the medicine, and when the feed of the feed tower is put into the return pipe, the feed that is put into the opposite to the return pipe is also identical in that it is moved from internal transport straws to the opposite to the return pipe through internal transport straws.

Therefore, the composition 2 of the registered utility model under Paragraph (1) of this case and the response composition of the challenged subject matter are the same.

(D) Composition 3

The composition 3 of the instant Claim 1 device is “a number of openings (110, 110) shall be prepared at the prescribed location of the regular horizontal transfer pipe (106).” This is corresponding to the “booming booming booming booming, which are corresponding to the multiple tank fishing as above, are installed depending on the length direction” (No. 17, 3-4).

The two composition is the same in terms of the composition of multiple openings (in the case of boom booming) to put feed returned to the multiple storage rooms of feed tank in the horizontal transfer boom connected to the vertical transfer boom, and there are multiple openings (in the case of multiple openings). Therefore, there are multiple openings (in the case of multiple openings) so that the feed returned can be stored at each storage room, and there is the effect that each storage room can store different feed.

Therefore, the composition 3 of the registered utility model under Paragraph (1) of this case is the same as the response composition within the challenged area.

(3) Comprehensive preparation results

In full view of the contents examined in the above (1) and (2), since the registered utility model of this case and the device subject to confirmation are identical to the technical field, purpose, composition, and effect of the device, the device subject to confirmation falls under the scope of the right of the registered utility model of this case (1).

E. Whether the challenged device falls under the scope of the right to registered utility model under paragraph (3) of this case

Paragraph 3 of this case is a subordinate to the registered utility model of this case. The registered utility model of this case referred to in Paragraph 1 of this case is a structure that combines the "10 of the opening and closing (110)" with the "10 of the registered utility model of this case. On the outside side of the opening and closing (116) above, the outer side of the above opening and closing (110) shall be established, and the outer side of the above opening and closing (116) shall be the other side of the above opening and closing (116) shall be set up at the above opening and closing (110) to correspond to the above opening and closing (110). This is a device that adds "the opening and closing (118) of the opening and closing (210) of the closed and closing (210) of the registered utility model of this case to "the opening and closing (210) of the closed and closing (210) of the closed and closing (216) of the closed and closed (216) of the closed and closed (216) of the closed (216).216) above.216).

The two compositions shall be installed in the horizontal transfer museum, and an open branch connecting the opening and closing door to the horizontal transfer museum shall be installed in the horizontal transfer museum, and the horizontal transfer observation, which is linked with the opening and closing door, shall be identical in that it is equipped with a fixed part to fix the opening and closing door, and the effects of the operation shall also be identical in that it can be changed or closed by the opening and closing door installed in the horizontal transfer museum.

Therefore, since the second registered utility model of this case and the second registered utility model of this case are identical to the technical field, purpose, composition, and effect of the second registered utility model of this case, the second registered utility model of this case is judged to fall under the scope of rights of the

4. Conclusion

Therefore, the invention in question falls under the scope of the right of registered utility model under paragraphs (1) and (3) of this case, and the trial decision of this case is lawful as it concludes with this conclusion. Therefore, the plaintiff's claim seeking revocation is dismissed as there is no reason to do so, and it is so decided as per Disposition.

Judges Kim Jong-du (Presiding Judge)

(1) The comparative design 1 is the “ feed return device for feed transport vehicles” as shown in the previous technology in the specification (Evidence A No. 3) of the instant registered utility model, and the comparative design 2 is the “age transfer device for the combined use of feed transport vehicles” as stated in the evidence No. 4.

2) The term "boom boom boom boom(151), "boom boom boom(130)," and "boom boom(140)" are also written in a height subject to confirmation, and the term of "boom boom boom boom(151)," and the term of "boom boom boom boom(140)" are integrated into connecting officers (151), vertical transport boom(130), and horizontal transport boom(140).

3) Accordingly, a plan to implement a plan that does not have any boom boom in the area of horizontal transport booming response to the storage room prepared in the last side of the feed tank among the plans of the plan within the challenged area cannot be deemed as a plan subject to confirmation, and therefore, it is not subject to determination as to whether it falls under the scope of the right of the registered plan in this case.

4) On August 6, 2012, the Plaintiff stated the same purport as the Plaintiff’s written brief Nos. 2, 5, and 7, and on November 5, 2012, the Plaintiff made a statement to the same effect on the date for pleading.