Gongjin Co., Ltd. (Patent Attorney Lee Jae-soo, Counsel for defendant-appellee)

Defendant (Patent & Patent Act, Patent Act, Attorney Min Byung-ho, Counsel for defendant-appellant)

May 12, 2011

1. The decision made by the Intellectual Property Tribunal on July 30, 2010 on the case No. 2010Da243 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Basic facts

A. Patent invention of this case

(i) Name of the invention: A freezing and freezing apparatus for freezing and freezing fish;

(2) Date of application/registration date/registration number: August 12, 1999/ January 11, 2002/ (patent registration number omitted)

3) patentee: The plaintiff;

4) Claims and major drawings: Attached Table 1 (hereinafter referred to as “claims 1”, “instant Claim 1,” and the remainder of claims are also made in the same manner).

(b) An invention subject to verification;

The invention subject to confirmation is "a device for freezing and freezing and freezing fish," which is specified by the defendant. The description and drawings are as shown in attached Table 2.

C. Details of the instant trial decision

The Defendant asserted that the challenged invention does not fall under the scope of the patent right of the instant patent invention, and the Korean Intellectual Property Trial and Appeal Board tried to confirm the scope of the patent right of the instant patent invention, and the Korean Intellectual Property Trial and Appeal Board rendered a trial decision on July 30, 2010 on the ground that the challenged invention does not fall under the scope of the patent right of the instant patent invention, but does not fall under the scope of the patent right of the instant patent invention under paragraphs (1) and (3), (4), (6) through (8), and (10) of this case, on the ground that the challenged invention does not fall under the scope of the patent right of the instant patent invention.

2. The parties’ assertion and the issues of the instant case

A. Summary of the plaintiff's assertion

1) The central axis inserted (215) of the challenged invention is not specified to the extent that it can be compared with the response composition of the instant Claim 1 invention.

2) The challenged invention is merely functionally modified part of the composition of the Claim No. 1 invention of this case, and it is equivalent to Claim No. 1 invention of this case. Thus, it falls under the scope of the right to Claim No. 1 invention of this case.

B. Summary of the defendant's assertion

1) Although the Defendant’s specific invention subject to confirmation has a part of its constituent elements unclear, it is written to the extent that it can be compared with the instant Claim 1 invention.

2) Although the display panel operated by the Twit of the instant Claim No. 1 is placed under the bottom, the “press” of the instant Claim No. 1 is placed in the roke and the bottom of the instant Claim No. 1 is simply limited to the thrower function. Therefore, the instant Claim No. 1 invention subject to confirmation and the instant Claim No. 1 invention cannot be said to be equal, unless the components are identical.

C. Key issue of the instant case

Therefore, the key issue of the instant case is whether the challenged invention is specified to the extent that it can be compared to the instant Claim 1 invention, and whether it falls under the scope of the right to the instant Claim 1 invention.

3. Whether the invention in question is specified to the extent that it can be compared to the invention in paragraph (1) of this case;

A. Relevant legal principles

In filing a claim for the confirmation of the scope of a patent right of a patented invention, the challenged invention, which is the subject of a request for trial, must be specified as much as it can be compared with the patented invention in question, and even if it is not necessary to state in whole the specific composition of the subject invention, the specific composition of the part corresponding to the elements of the patented invention shall be stated. If the subject invention is unclear and is not specified in detail to the extent that it can be compared with the patented invention, the Korean Intellectual Property Tribunal shall take measures such as ordering the correction of the description and drawing of the challenged invention to the extent that it does not change in its summary, and if it is insufficient to specify it, it shall be dismissed (see, e.g., Supreme Court Decisions 2003Hu656, Apr. 29, 2005; 2005Hu255, Nov. 23, 2006).

B. Composition analysis of the Claim 1 invention and the challenged invention

The invention of paragraph 1 of this case is, in the case of a string that the strings corresponding to the strings installed in the freezing and cooling heads are adjusted by the coordination of Hands (hereinafter referred to as "consembling 2"; hereinafter referred to as "consemblings") and the disease caused by the strings located in the fixed accommodation space and covering supporting signs for the installation of the said strings (hereinafter referred to as "consembling 1"); the above strings correspond to the strings, and the outside hand of the rrings and the outside handbrings, which reduce the physical quantity of the rrings to meet the prescribed scope from the inside and outside part of the said rrings, connected to the outside handbrings (hereinafter referred to as "consembling 2") and the opening and closing means to induce the strings of the strings (hereinafter referred to as "consemblings") connected to the said outside handbrings and racks.

(4) The invention subject to confirmation shall consist of 3 c.m. c. c. f. c. f. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g.))))). g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. g. k. k. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

C. Preparation for the composition of the instant Claim 1 invention and the challenged invention

First, in comparison with the composition 1, 4, 1, and 4 of the Claim No. 1 invention of this case, the composition 1 of the Claim No. 1 of this case and the composition of the Claim No. 1 of this case, and the composition of the Claim No. 1 of this case, are practically the same as that of the disease where the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body

Next, in comparison with the composition 2 of the Claim No. 1 invention of this case and the composition 2 of the challenged invention of this case, the composition of Claim No. 1 invention of this case corresponds to the "an opening or closing means inducing the straight king movement of the operating franchising by the operation fransing act of the art connected to the internal Hands." The composition of the challenged invention of Claim No. 1 of this case is linked to the "an opening or closing means connected to the internal hands (200)" that combines the vertical movement with the press (310), which is linked to the press (360). Thus, since the composition of the challenged invention of Claim No. 1 of this case is specified as the "an opening or closing means controlling the quantity of the movement (360) connected to the above mobile (370)". Thus, the composition of the challenged invention of the challenged invention corresponding to the operation franchis and operation frans (215) and 310 (c).

In addition, the composition of the Claim 1 invention of this case (3) invention of this case (3) invention of this case, which is a component corresponding to the "the removal means by sticking the string with the internal hand of the strings connected with the strings, and the strings attached with the strings corresponding to the above 310 strings," <3> The composition of the "the removal means by sticking the 370 strings (200) with the strings of the internal hands (215) and the presses (310), combined with the above presses (370) and the trings (360) connected with the above presses (310) and the trings (370 strings) connected with the above 310 strings (390 strings) and the "the removal means by 320 strings (320 strings) structure and the 215 strings (320 strings) structure without any separate.

However, the instant Claim No. 1 invention is a transit method converting it into the straight line movement of the operating team (112) by transmitting the revolving movement of the internal Hand (106) to the straight line box (110) which is fixed to the internal Hand (100) and protruding the internal Hand (106). However, the instant Claim No. 1 invention is a transit method converting it into the straight line movement of the operating team. However, the instant Claim No. 1 invention is a component of the instant Claim No. 2, “a press (310) formed by the vertical movement of the central axis inserted with the central axis (200) connected with the internal hand (20).” (3) The composition of the instant Claim No. 1 invention is specified as “a press (310), which is a straight line movement (215) in line with the central axis inserted (215). However, how to 215.310 straight line movement or a straight line movement can not be specifically known from the description and drawings of the instant invention.

The explanatory note of the invention subject to confirmation states as follows: “The power of the internal Hand (200) is delivered to the central axis inserted (215) combined with its central axis (210) and then moves the presses (310) above (see attached Forms 5 through 310) at the end of the said presses (see attached Table 2, 310), according to the 215 table prior to the 215 table of the central axis inserted (215).” However, the drawing of the invention subject to confirmation states as follows: (a) the central axis inserted (215) is combined into the daily side of the presses (310), but it does not seem that the central axis inserted (215) can be carried out.

Therefore, the specification and drawings of the challenged invention cannot be seen to have been specified to the extent that the difference can be determined in comparison with the composition 2 and composition 3 of the instant Claim No. 1 invention, inasmuch as the composition of the challenged invention can not be seen to have been specified to the extent that the difference can be determined in comparison with the composition 2 and composition 3 of the instant Claim No. 1 invention.

D. Judgment on the defendant's assertion

Although it is somewhat unclear in the statement of the challenged invention in this case, the defendant asserts that the "central axis insertion book" in the "central axis inserted (215)" in the statement of the challenged invention in this case is an ordinary technician, the above "central axis insertion book" in the statement of the challenged invention in this case can be clearly understood through the statement of the description of the challenged invention in this case and the drawings, and furthermore, even if the above unclear part is above, it can be clearly confirmed that the remaining part of the challenged invention in this case and the challenged invention in this case is clearly different in terms of its composition, so the invention in this case should be deemed to have been specified.

According to the real photograph, etc. of the invention subject to confirmation, ① the “central axis inserted” of the invention subject to confirmation constitutes the part protruding a cover side so that internal hands can be inserted, ② the part corresponding to the Trith of the patented invention of this case (hereinafter “trith”) separate from the inside of the central axis inserted part; ③ the part formed at the lower part of the trith of the trith formed on the bottom of the trith string, is inserted and fixed; ④ the upper part of the trith is formed with the press, and ⑤ the part formed with the upper part of the cover formed with the central axis inserted, and ⑤ the part in which the trith of the trith is formed with a space added to the lower part formed with the main axis, and ② the central axis inserted part of the invention subject to confirmation is difficult to view that only the trithization or the part in which the trithization can be seen as constituting the “an ordinary trithicization or the part of the invention subject to confirmation.”

In addition, as seen later, it cannot be determined that each composition of the patented invention in this case and the challenged invention in question differs substantially from each other, and thus, as alleged by the Defendant, it cannot be said that the patented invention in this case and the challenged invention in question can be confirmed that there is a clear difference in the composition of the patented invention in this case and the challenged invention in question with the remaining description, and thus, it cannot be said that the challenged invention in question is specified.

Furthermore, according to the Defendant’s above argument, “central axis inserted in the challenged invention” among the challenged inventions at the time of the instant trial decision, which was used as a comprehensive title to the art in question, and the amendment was made in accordance with the drawing as shown in the attached Table 3 at the stage of the instant lawsuit, the supplement of the explanation and drawing regarding the challenged invention subject to determination as to whether it falls under the scope of the right of the patent invention is permissible in the litigation procedure for revocation of the scope of right or not. If the explanation and drawing are widely permitted in the litigation procedure, not in the trial procedure for revocation, the patent court may directly determine whether the modified invention falls under the scope of the right of the patent invention. In addition, the current patent law should not be interpreted as not adopting such litigation structure, and if the invention subject to confirmation is modified to another invention without the identity of the challenged invention subject to revocation of the trial decision, the subject matter of lawsuit should not be deemed as being altered and separate (see, e.g., Supreme Court Decision 2006Hu36539, Aug. 29, 2001).

However, in relation to the composition ② of the invention subject to confirmation, the explanatory note of the invention subject to confirmation at the trial stage of this case is described only as “the above presses (310) will move the presses (see attached Forms 5 through 3, 3, respectively) while carrying out the straight line campaign (310) in line with the central axis inserted (215) before the central axis inserted (215).” Even though the explanatory note of the invention subject to confirmation at the trial stage of this case did not appear entirely on the drawing, it cannot be seen as having been changed not only in the case where the corrective invention is subject to confirmation but also in the case where the corrective invention of this case can not be seen as being identical to the above corrective invention of this case without the defendant’s explicit reason.

E. Sub-decision

In full view of the above, it cannot be said that the invention in question is specified to the extent that the difference can be judged in comparison with the corresponding composition of the invention in paragraph (1) of this case.

4. Whether the invention subject to confirmation is equal to the invention referred to in paragraph (1) of this case;

A. Relevant legal principles

Even in cases where there are parts of the challenged invention described in the claim scope of the patented invention, if both inventions are identical with the solution principle of the patented invention, even if they are exchanged, if they are able to achieve the same purpose as that of the patented invention, practically the same action effect is shown, and such substitution is obvious to the extent that anyone can easily think of it, unless there are special circumstances, such as where the challenged invention falls under the one that could have easily been made by a person having ordinary knowledge in the art to which the invention pertains (hereinafter “ordinary technician”), or where the same technology as the one already known at the time of application of the patented invention, or where the equivalent composition of the challenged invention through the procedure for application of the patented invention falls under the one that is clearly excluded from the claim scope, it shall be deemed that the challenged invention still falls under the scope of the right of the patented invention (see, e.g., Supreme Court Decisions 97Hu200, Jul. 28, 200; 2005Da20694, Feb. 29, 2005).

B. Preparation for the instant Claim 1 invention and the challenged invention

After preparing the instant Claim 1 invention and the challenged invention, the instant trial decision differs from the instant Claim 1 invention in comparison with the instant Claim 1 invention, and there is no separate composition on the bottom, and accordingly differs from the instant Claim 1 invention placed on the bottom by an operating display panel, and accordingly, the instant invention subject to confirmation differs from the instant Claim 1 invention. As such, the instant invention subject to confirmation states that it is not identical or equal to the instant Claim 1 invention, but it is erroneous in itself, since it is in comparison with the composition 3 of the instant Claim 1 invention to the extent that it can be compared as seen in the foregoing paragraph 3.

In addition, the decision of this case is based on the solution principle for the task that "In order to solve the task that enables the opening of the doping only by the action of the internal Hand, separate from the external Hand, the component 3 is placed within the bottom and the task of driving the doping through the combination of the main home of the operation display and the ebbbbbbs of the mobile booms according to the internal Hand's conference. However, the challenged invention subject to confirmation is driving the doping by a movement (390) connected to the outer cambs (390) connected to the outer cambs (390) according to the internal Hand's conference, so both elements cannot be deemed the same solution principle for the task (refer to the evidence 1 of this case)."

However, paragraph 1 invention of this case has a connecting structure of "Internal Hands (100) - 106 (108) - Operation Hands (110) - Movement (70) - doping (50) by converting the power of the internal hand to the straight line movement of the operation display line (70) and doping (50) in order to make it possible to open the language only by the action of the internal hand line (200) - Central 210 (215), and the invention subject to confirmation has a connecting structure of "working 10 (110) - Movement (70) - Movement (50) - Movement (370) - Movement (360) 360 can not be different from those of the internal hand line (37) in order from the internal hand line (37) - can not be seen separately from the internal hand line (200).

However, the claim 1 invention of this case is "a means of rescission that is stuck up to the bottom board", and the invention subject to confirmation is returned to "a bottom without any composition only for a simpleer function," and some of the parts are different from the composition. However, the invention subject to confirmation is not different in the technical characteristics to solve the problem that the action of the internal Hand can be opened separately from the external Hand, so the difference in the composition is not the difference in both essential parts of both inventions.

As to this, the Defendant asserts to the effect that the method of rescinding the composition 3 of the instant Claim No. 1 invention is different from the characteristic composition of the instant Claim No. 1 invention, and that both inventions are different since both inventions are different in terms of the characteristic composition of the instant Claim No. 1 invention, since the Defendant’s method of rescinding the instant Claim No. 1 invention 3, at the time of the examination by the Korean Intellectual Property Office, was reduced to and registered after the examiner’s rejection of the rejection of the rejection of inventive step by prior art by the examiner.

In this case, the Patent Attorney's "Any means of rescission that has stuck down the small splate at the bottom" of paragraph (1) of this case is substantially the same as the Patent Attorney's "in case of paragraph (1) of the Patent Gazette (Evidence B No. 3) of the patent invention of this case which was disclosed as of March 5, 2001 before the examiner sent a notice of submission of opinions (Evidence B No. 1) to the public of the patent invention of this case as of June 30, 201, which was published as of March 5, 201 by the examiner."

Therefore, the phrase “means of cancellation, which is stuck down under the bottom of the nives of the instant Claim No. 1,” is only added to Claim No. 1 after the amendment of the cancellation method described in Claim No. 7 prior to the examiner’s notification of the ground for rejection by the examiner, and cannot be deemed to be limited to the purpose of avoiding prior art. Moreover, in the Japanese Publication No. 9-158575 (Evidence No. 4), which is presented as evidence of the denial of inventive step of the instant Claim No. 1 at the time of the notification of the ground for rejection, the composition of the hives of the hives by directly selecting the hives in accordance with the hives of the hives as an urgent means, and thus, it cannot be deemed that the characteristic composition of the instant Claim No. 1 is the same.

Ultimately, the invention in question is not specified to the extent that it would be compared with the invention in this case, but even if it is compared only with the composition that could be compared, it cannot be concluded that the invention in question differs from the solution principle of the task or is not in an equal relationship with the invention in question.

4. Conclusion

Therefore, since the invention in question is unclear and not specifically specified to the extent that it can be compared with the patented invention, the petition for a trial in this case shall be dismissed. Since the trial decision in this case which concluded differently is unfair, the plaintiff's claim seeking revocation is justified, and it is so decided as per Disposition with the assent of all.

[Attachment]

Judges exhaust fever (Presiding Judge) and Kim Yong-deok