[1] The case holding that the interest in the confirmation of the scope of a patent right did not extinguish merely because an agreement was reached between the owner of the utility model right and the owner of the utility model right

[2] Criteria for determining the scope of a registered utility model

[1] Even though Eul agreed between the owner of the utility model right on the registered complaint Gap and Eul who was the victim of the infringement of the utility model right, and Eul agreed not to recognize the right on the registered complaint and not to act in violation of the right, the meaning of the agreement can only be deemed as Eul admitted the legitimate right on the registered complaint and decided not to act in violation of the right, and therefore, it cannot be deemed that Eul decided not to act in violation of the right. Accordingly, it cannot be said that the specific device Eul's implementation directly belongs to the scope of the right on the registered complaint, or that Eul waived the right to request a trial to confirm the scope of the right on the registered complaint. Thus, the interest on the confirmation of the scope of right cannot be deemed as extinguished solely on the ground that such agreement was reached

[2] In principle, the scope of the right of a utility model or the substantial scope of a utility model shall be determined by the matters described in the scope of a utility model application among several descriptions in the specification. If the technical composition of a utility model is unknown or known even if it is possible to determine the technical scope, the technical scope or the scope of a utility model shall be determined as a whole by supplementing other descriptions in the specification, such as the detailed description of the device or drawings, in a case where the technical scope of the utility model can not be determined. However, it is not permissible to expand the scope of a utility model application by other descriptions

[1] Article 25 (1) and (3) (see the current Article 35) of the former Utility Model Act (amended by Act No. 4209 of Jan. 13, 1990) / [2] Articles 29 and 8 of the former Utility Model Act (amended by Act No. 4209 of Jan. 13, 1990), Article 57 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) (see the current Article 97)

[1] Supreme Court Decision 77Hu50 delivered on March 13, 1979 (Gong1979, 11913), Supreme Court Decision 89Hu2151 delivered on October 23, 1990 (Gong1990, 2422) / [2] Supreme Court Decision 91Hu1809 delivered on June 23, 1992 (Gong1992, 2279) Supreme Court Decision 94Hu1787 delivered on December 12, 1995 (Gong196, 395), Supreme Court Decision 94Hu258 delivered on February 9, 196 (Gong196, 955)

Sigma Co., Ltd.

The Head of the Korean Patent Office (Patent Attorney Shin Jae-chul, Counsel for defendant-appellant)

Korean Intellectual Property Office Decision 93Na264 dated April 29, 1995

The appeal shall be dismissed. The costs of appeal shall be assessed against the respondent.

The grounds of appeal are examined.

1. On the first ground for appeal

According to Article 25(1) and (3) of the former Utility Model Act (amended by Act No. 4209 of Jan. 13, 1990), a claimant may only file a request with interested parties to confirm the scope of a utility model right. According to records, the claimant is engaged in the same business as the respondent who is the utility model right owner of the registered utility model (registration No. 63061, hereinafter referred to as the "registration complaint of this case"), and is notified that he/she has received a warning of infringement of a utility model right from the respondent, barring any special circumstance, he/she shall be deemed to fall under the interested parties of the request for the confirmation of the scope of the right of this case.

However, according to the records, the claimant filed a criminal complaint on the ground that the claimant infringed the above utility model right against the claimant, and the claimant, instead of withdrawing the above complaint, agreed upon by both parties, shall pay the claimant a total of KRW 17,500,000,000, and further, the claimant agreed between the claimant and the respondent that "it shall not recognize the right of Article 63061 of the utility model registration owned by the claimant and shall not commit any act contrary to the right."

However, in the records, it is not clear whether the above criminal complaint and its agreement were related to the implementation of the plan of this case, or because the claimant conducted a device different from the plan of this case. Even though the criminal complaint and the agreement were due to the claimant's implementation of the plan of this case, the purport of the above agreement can only be seen as recognizing the claimant's legitimate right to the complaint of this case and not to act in violation of his right. Thus, the above agreement can not be seen as finding that the claimant acknowledged that the plan of this case belongs to the plan of this case within the scope of the right to the complaint of this case, or waivers the right to request a trial to confirm the scope of right to the complaint of this case. Thus, the decision of the court below to the same purport is just, and it cannot be deemed that the decision of the court below did not err in the misapprehension of the legal principle as to a criminal complaint of this case or in the misapprehension of the legal principle as to a criminal complaint of this case, as otherwise pointed out in the grounds for appeal.

2. On the second and third grounds for appeal

In principle, the scope of a utility model right or the actual scope of a utility model right shall be determined by the matters described in the scope of a utility model application among several descriptions in a specification. If the technical composition of a registered utility model is unknown or it is impossible to determine the technical scope even if the description alone is known, the technical scope or scope of a registered utility model shall be determined by supplementing other descriptions in the specification, such as a detailed description of the device or a drawing. However, even in such a case, the extension of the scope of a utility model application by other descriptions in the specification shall not be permitted (see Supreme Court Decisions 87Hu107, Oct. 11, 198; 91Hu1809, Jun. 23, 1992; 94Hu1787, Dec. 12, 1995, etc.).

According to the reasoning of the decision of the court below, the registered device of this case is related to the heat axis valve which is installed in parallel with the air conditioning room or connected part of the cable which constitutes a currency, so that it may injecte the air dried inside the cable with a single body and check the air pressure level developed inside the cable. The summary of the registered device of this case mentioned within the scope of the utility model registration claim is to be installed together with a T-type valve and an I-type valve. The design of this case is only for the examination of air pressure installed inside the cable, and the technical composition of the registered device of this case is not accepted in light of the above legal principles, and it is not acceptable to accept the decision of the court below that the registered device of this case does not fall within the scope of the registered device of this case, or that it does not fall within the scope of the registered device of this case only within the scope of the registered device of this case, since it does not fall within the scope of the registered device of this case.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)