[1] Where a trial on a ruling of rejection finds another reason for rejection in a trial on a ruling of rejection, whether to give an opportunity to submit a written opinion on the new reason for rejection by notifying the reason for rejection (affirmative)

[2] The case holding that a trial ruling rejecting a request for a trial against a rejection ruling without giving the applicant an opportunity to submit a written opinion is unlawful on the ground that the rejection ruling denying an inventive step based on the invention described in the publication distributed and the trial ruling denying the inventive step based on the description of the patent application is inconsistent with the knowledge

[1] Article 62 of the former Patent Act (amended by Act No. 6411 of Feb. 3, 2001) provides that an examiner shall reject a patent application when the patent application constitutes a ground for rejection, and Article 63 of the same Act provides that an examiner shall notify the patent applicant of the reason for rejection and give him/her an opportunity to submit a written opinion within a specified period when he/she intends to make a ruling of rejection under Article 62. Article 170 (2) of the same Act provides that the provisions of Article 63 shall apply mutatis mutandis to a case where the reason for rejection and other reasons for rejection are discovered in a trial against the ruling of rejection. Since these provisions are so-called compulsory provisions, the reasons for rejection of the ruling of rejection must be consistent with the reasons for rejection at least with the notification of the reason for rejection, and if an examiner finds another reason for rejection in a trial against the ruling of rejection, he/she shall give the patent applicant an opportunity to submit a written opinion on the new reason for rejection.

[2] The case holding that the trial ruling rejecting the inventive step based on the grounds of the rejection ruling that denied inventive step on the basis of the invention described in the publication distributed, and the trial ruling rejecting the inventive step based on the specification of the patent application invention is inconsistent with the recognition, and thus the trial ruling dismissing the appeal against the rejection ruling without granting the applicant an opportunity to submit a written

[1] Articles 62, 63, and 170(2) of the former Patent Act (amended by Act No. 6411 of Feb. 3, 2001) / [2] Articles 62, 63, and 170(2) of the former Patent Act (amended by Act No. 6411 of Feb. 3, 2001)

[1] Supreme Court Decision 88Hu950 delivered on August 8, 1989 (Gong1989, 1363), Supreme Court Decision 92Hu1066 delivered on June 28, 1994 (Gong1994Ha, 2109), Supreme Court Decision 98Hu300 delivered on November 12, 199 (Gong199Ha, 2504), Supreme Court Decision 97Hu3494 delivered on January 14, 200 (Gong200Sang, 397), Supreme Court Decision 98Hu515 delivered on May 29, 2001 (Gong201Ha, 1533)

Gaba Gaba Sha Gaba (Patent Attorney Park Jong-soo et al., Counsel for the plaintiff-appellant)

The Commissioner of the Korean Intellectual Property Office

Patent Court Decision 200Heo6752 delivered on July 27, 2001

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

1. Summary of the judgment below

The court below determined that the patent treatment application of this case is able to be able to be able to improve the number of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of kinds of different from the existing types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of different types of kinds of different from the existing types of different types of different types of different types of different types of terms.

2. Judgment of the Supreme Court

Article 62 of the former Patent Act (amended by Act No. 6411, Feb. 3, 2001; hereinafter the same) provides that an examiner shall render a ruling of rejection if the patent application constitutes a ground for rejection under the conditions of the patent application, and Article 63 of the same Act provides that an examiner shall notify the patent applicant of the reason for rejection and give him/her an opportunity to submit a written opinion within a prescribed period of time when he/she intends to make a ruling of rejection under Article 62. Article 170 (2) of the same Act provides that Article 63 of the same Act shall apply mutatis mutandis where he/she finds a ground for rejection different from that of the ruling of rejection in a trial against the ruling of rejection. Since these provisions are so-called mandatory provisions, the grounds for the ruling of rejection against the ruling of rejection must be consistent with the reasons for rejection at least with the ruling of rejection, and where an examiner finds another ground for rejection in a trial against the ruling of rejection, he/she shall give him/her an opportunity to submit a written opinion on the new reason for rejection.

According to the above legal principles and records, the patent applicant's rejection ruling of No. 17 on April 30, 199 that the patent application of No. 2 was rejected on September 13, 199 that was rejected by a person with ordinary knowledge in the art of this case, and the patent applicant's rejection ruling of No. 1 on September 7, 199 that the patent application of this case could not be easily described. At the same time, the patent applicant's rejection ruling of No. 1 on September 7, 199 that the patent application of this case was rejected by a non-obviousness No. 1 on the ground that the patent application of this case was rejected by the non-obviousness No. 1 on September 16, 199 that the patent application of this case was rejected by the non-obviousness of No. 1 on the ground that the patent application of this case was rejected by the non-obviousness of No. 7 on the ground that the patent application of this case was rejected by the non-obviousness of No. 1 on the ground that the non-obviousness of No. 1 on the patent application of this case was rejected. 6.

Therefore, although the court below should revoke the trial decision of this case on the ground of such procedural illegality, it erred in the misapprehension of legal principles as to the above provisions of the Patent Act, and the ground of appeal assigning this error is with merit.

3. Conclusion

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.

Justices Shin Hyun-chul (Presiding Justice)