Gabus Co., Ltd. (Law Firm Yang Hun-Ga et al., Counsel for the defendant-appellant)

KT Co., Ltd. (Attorney Kang Dong-se et al., Counsel for the defendant-appellant)

March 16, 2011

1. The plaintiff's claim is dismissed.

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

The defendant shall implement the procedure for the registration of patent transfer relating to the patent stated in the attached list to the plaintiff.

1. Basic facts

A. The Plaintiff Company was established on September 26, 200. At the time of its incorporation, the representative director was Nonparty 1 who had worked for 30 years in ELE Co., Ltd., and Nonparty 2 raised funds as a major shareholder of the Plaintiff Company.

B. In around 2003, the Plaintiff Company granted a representative telephone number to community, such as the Internet club, etc., and applied for an invention on “the community call” that provides the function of posting a notice on the phone number by posting the phone number, but the patent registration was difficult on the ground of the earlier application, and developed the so-called “the mobile phone service” system that allows two or more telephone numbers to be given and used on one mobile phone terminal.

C. On April 18, 2005, the Plaintiff Company established the Componact Co., Ltd. with the representative director Nonparty 3 and the auditor Nonparty 1 as a non-party 1 in order to carry out the “sonphone service.”

D. From July 13, 2005 to November 5, 2005, the Plaintiff Company made a project proposal for the “sonphone service” system in the name of the Plaintiff Company or the compact in the name of the Plaintiff Company or the Plaintiff.

E. On January 22, 2007, the Plaintiff Company filed a patent application for an invention of “slphone service,” but completed the patent registration on June 18, 2008 with regard to “the method of supporting multi-slphones of multi-slphone numbers” on the following grounds: (a) the Plaintiff was ordered to make an earlier application for the same invention on the grounds of the earlier application for the patent; and (b) the Plaintiff deleted the claim 1, the most essential part of the invention

F. The Defendant Company completed the patent registration on March 6, 2008 with respect to “the mobile communication device with multiple tampers for multiple numbers services and their control methods” (hereinafter “instant patent”).

[Ground of recognition] Each entry in Gap evidence Nos. 1, 2, 8, 9, 12, 15 through 17 (including paper numbers), and the purport of the whole pleadings

2. The plaintiff company's assertion

A. At the time, the Comcom Co., Ltd. was established in order for Nonparty 4, who was the team leader in charge of the new business of the KTFel (hereinafter “KTF”), and Nonparty 5, the representative director of the GTF, to carry out the “sonphone service” business with the Plaintiff company, and Nonparty 4 and Nonparty 5 owned the shares of the KTcom Co., Ltd. under the name of the tea.

B. The Plaintiff Company and the non-party 4 and the non-party 5 set up a sub-sponsor Co., Ltd. with Nonparty 5 as the representative director in order to propose the business of “sponphone services” to KTF, and the said business proposal was made to KTF in the name of the said company, but was omitted.

C. The patent of this case is identical to the Plaintiff Company’s “surphone service” invention, and is determined to register the patent by filing an application without permission without the fact that Nonparty 1, etc. transferred the right to file an application based on the above invention that the Plaintiff Company had the right to file an application by invention.

D. As the Defendant Company acquired the instant patent right that the Plaintiff Company had to acquire without any legal ground, it is obligated to return the said patent right to the Plaintiff on the ground of unjust enrichment.

3. The judgment of this Court

(a)requirements for recognition of a single application;

In this case, it is a matter of whether the subject who is entitled to obtain a patent for an invention under the Patent Act is limited to the inventor or his successor (Article 33(1) of the Patent Act). In this case, the question is whether the subject of the patent application falls under “the case where a third party who is unaware of a legitimate right holder files an application without permission.” To fall under such a multiple application, requirements such as ① the identity of the invention, ② the identity of the source, ③ the application without permission are required.

B. In the instant case

The defendant company asserts that the patent of this case was registered independently by Nonparty 6, 7, and 8, who is an executive officer of the defendant company, and was registered as a patent by its own invention and application, and is irrelevant to the "sonphone service system" system of the plaintiff company or the plaintiff company.

Therefore, this paper first examines the requirements of the recognition of the maternity application, i.e., whether the Defendant Company came to know of the patented invention of this case from the “soverphone service” system claimed by Nonparty 1, etc. of the Plaintiff Company.

Considering the overall purport of Gap evidence 2, 3, 13, and Gap evidence 16-1, 2, and 16-1, and 2, the plaintiff company made a project proposal with respect to the above "Synanol" to KTF on December 1, 2003. The above proposal was adopted on February 26, 2004, and the understanding letter on the business partnership between the plaintiff company and KTF was concluded on February 26, 2004. The non-party 5 was appointed as the representative director, the non-party 1 as the auditor, and the non-party 6, 7, and 8 as the inventor of the patent of this case. The non-party 6, 7, and 8 as the officers of the defendant company did not directly engage in Handphone technology development and research in the defendant company.

However, the following facts and circumstances, which are acknowledged by the entire purport of testimony and pleading of Non-Party 4 and Non-Party 8, the witness Eul evidence Nos. 1 through 5, 7, and 8 (including virtual phone numbers) and the entire purport of each testimony and pleading, i.e., (i) the invention on the above "Mynty Call" provides the function of providing the members of the community with the phone number by posting the phone via their telephone numbers. It is basically different from the fixed number and virtual phone numbers registered on one mobile phone terminal, which are basically assigned the same effect as the holding of the two mobile phone terminals. (ii) The non-party 4 introduced the non-party 5 to the non-party 2 of the plaintiff company, and provided no evidence to acknowledge that the non-party 6 of the patent invention of this case was participating in or held shares in the establishment of the non-party 4 and the non-party 8 company's mobile phone number, and (iii) the director of the patent office of the patent office of this case and the non-party 20.

Therefore, insofar as it is not recognized that the patented invention of this case and the system invention of the Plaintiff Company are the same as the source of the patent invention of this case and the system invention of the Plaintiff Company, the above assertion by the Plaintiff Company is without any need to further examine the remainder

4. Conclusion

Thus, the plaintiff's claim of this case is dismissed for reasons.

[Attachment]

Judges Kang Young-soo (Presiding Judge)