If there is a common part of the components of a utility model right applied and registered, whether the scope of the right of the utility model right is extended with respect to the publicly-used part after the exclusion period of a request for a nullity trial expires.

As a utility model right is granted to a new technical device, the technical level at the time of a patent application for practical use must be considered as a matter of course, and as such, as to the portion of the public notice without newness at the time of the application, the confirmation of the scope of the right may not be sought.

Article 24 of the Utility Model Act; Article 25 of the Utility Model Act; Article 18 of the Utility Model Act; Article 2 of the Utility Model Act; Article 4 of the Utility Model Act

Kim Han-Gyeong

Freeboard and five others

Patent Country

The case shall be reversed in the original judgment, and the case shall be remanded to the Patent Court Appeal.

On the Grounds of Appeal by appellant Agent

The original trial decision is a structure that has been installed to escape both elevators and three short circuit wire networks from the explanation of its reason, and it is a fact that has been published in Korea since several hundreds of years ago, but at the expiration of the period of request for a trial for invalidation, newness is not mentioned pursuant to Article 25 of the Utility Model Act, and this case is a confirmation of the scope of the right, so it is not limited to whether the scope of the right is infringed or not, even though the device of the utility model is known to the public in the confirmation of the scope of the right of the utility model, unless it is known by the method of request for invalidation of the utility model registration within the period specified in the Utility Model Act, it is not considered even if there is a ground for the confirmation of the scope of the right. However, in the confirmation of the scope of the right, the wrong utility model right is granted to the new technology and the new utility model right is granted to the new technology at the time of the application, and its newness is granted to the new technology and the utility model right is determined by the technical purpose of the utility model right, including the technical purpose of the utility model.

Therefore, in determining the specific scope of utility model rights, the technical level at the time of the patent application for practical use is to be considered inevitably, but the original decision is to make a formal decision with the intention to take place only by abstract expressions shown in the specification and drawing(s), and the structure that is installed to escape both the upper two short-term steel nets from the upper two short-term steel nets with the first two short-term steel nets with the first two short-term type with the first two short-term type with the first two short-term type with the first two short-term type with the first two short-term type with the first two high-term type, even if there is no trial for invalidation, it is necessary within the technical scope because the utility model right as mentioned above is to be granted a new technical device, and in determining its specific technical scope, it is necessary to consider the technical level at the time of the application for the utility model right as well as to establish the technical scope of the utility model right as well as the extension of the utility model right as well as the extension of the utility model right as well as the technical scope of the utility model right, which is widely known and widely accepted.

Therefore, pursuant to Article 28 of the Utility Model Act Article 136 of the Patent Act, Article 400 and Article 406 of the Civil Procedure Act, the judge of the Supreme Court is also able to decide as per Disposition with the assent of all participating judges, except for the dissenting opinions as follows:

[Dissenting Opinion by Justice Yang Dong-dong et al. of the Supreme Court Decision 2008Hun-Ga

According to Articles 24, 18, 2, and 4 of the Utility Model Act, where a utility model is either known to the public in the Republic of Korea or used publicly in its application for registration, and it is not new, a copy of the utility model may be invalidated by a trial. According to Article 25 of the Utility Model Act, the above request for a trial on invalidation may not be made after five years have elapsed from the date of registration. This provision provides that a request for a trial on invalidation may not be made after the expiration of five years from the date of registration. This provision guarantees the newness of a technical device in a utility model and simultaneously provides new and other requirements as a utility model, so long as the utility model has been acquired by registration, it was registered with the acquisition of the utility model right at the same time as there was two

If it is possible to claim the invalidation of the right any time because the utility model has no newness or has the same or similar shape as the national flag or decoration even though the registration was made by a review that there is no defect in the requirements as a utility model, it would be contrary to the purpose of legislation of the Utility Model Act that the right holder would contribute to the development of the national industry by promoting the improvement of technical progress as well as by promoting the improvement of technical progress.

In addition, according to Article 24 (1) 2 of the same Act, the system of confirmation of the scope of the right of a utility model right has been separately provided for in the system of invalidation of registration. As seen above, the system of invalidation of registration is a matter of whether the contents of the utility model right meet the requirements for establishment required by the law, and the system of confirmation of the scope of the right refers to the scope of effect externally on the premise that the requirements for establishment of the right have already been met. The former is a matter of whether the requirements for establishment of the right have already been met within the standards at the time of application for registration, and the latter is a matter of whether the right is infringed, i.e., the scope of the right's effect externally, during the period in which the right is in existence, and the former is limited to time to dispute whether the requirements for establishment of the right are met, and the latter is a matter of time to ask for an adjudication on at any time without time, and it is interpreted as a system based on the same safety of the right.

Therefore, it is not possible to determine the scope of the effect of the right as a passive requirement in establishing the utility model right.

According to the facts duly established in this case, since subparagraph 287 of the registration of a claimant's utility model was applied on March 16, 1956 and registered on December 19, 1956 and the period of exclusion of the request for invalidation trial has expired, even if the part of the elements of the trademark right of a family petition has already been publicly known, the period of request for invalidation trial has already expired, so long as it is not possible to contest the invalidation, it shall not be neglected the utility model right of the claimant as a publicly known and publicly announced town, unless it is in a situation where the invalidation has already expired, as long as the period of request for invalidation trial has already expired. Therefore, the court below'

Supreme Court Judge Yang-Gyeong-Gyeong (Presiding Judge) (Presiding Judge) Gyeong-do and Kim Dong-dong and Kimchi-bak, so-called the maximum luxle lusium lusty lusty lusty lusty lus