A trial to confirm the legality of a claim for passive scope of a utility model right between two registered utility model rights (law)

Confirmation of the scope of the right of a utility model right is to confirm that a non-registered utility model mainly falls within the scope of the right of a registered utility model or does not fall under the scope of the registered utility model actively or passively. Thus, in cases where the contents of a registered utility model right are identical or similar to those of a registered utility model, the prior-registered owner of the registered utility model right is only entitled to file a request for invalidation of the subsequent-registered utility model right against the owner of the registered utility model right, and there is no benefit to file a request for confirmation of the scope of the active right, but the subsequent-registered owner of the utility model right claims against the prior-registered owner of the utility model right that the previous-registered utility model right does not fall within the scope of the right of the prior-registered utility model right by asserting that the previous-registered utility model right differs from

Article 35 of the Utility Model Act, Article 135 of the Patent Act

Supreme Court Decision 84Hu19 delivered on April 23, 1985 (Gong1985, 788), Supreme Court Decision 84Hu6 delivered on March 25, 1986 (Gong1986, 705), Supreme Court Decision 91Hu1748 delivered on April 28, 1992 (Gong192, 1730)

Claimant (Patent Attorney Seo-sung et al., Counsel for defendant-appellant)

Appellants

Supreme Court Decision 94Hu975 delivered on September 29, 1995

Korean Intellectual Property Office Decision 95Na313 dated January 31, 1996

The appeal shall be dismissed. All expenses of appeal shall be borne by the claimant.

The grounds of appeal are examined.

On the first ground for appeal

A confirmation of the scope of the right of a utility model right is confirmed to be that a non-registered utility model mainly falls within the scope of the right of a registered utility model or does not fall under the scope of the registered utility model actively or passively. Thus, where the contents of a registered utility model right are identical or similar to those of a registered utility model, the prior-registered owner of the registered utility model right can file a request for invalidation of the subsequent-registered utility model right against the owner of the utility model right, and there is no benefit to file a request for confirmation of the active scope of the right (see Supreme Court Decision 84Hu6, Mar. 25, 1986). The subsequent-registered owner of the utility model right claims against the prior-registered owner of the utility model right that the subsequent-registered utility model right does not fall within the scope of the right of the prior-registered utility model right, and that the subsequent-registered utility model right does not fall within the scope of the right of the prior-registered utility model right, and that there is no benefit to file a request (see Supreme Court Decision 84Hu19, Apr. 23, 1982). 198).

Even if a utility model registration has been made in the course of the instant trial or litigation, the instant claim, which is an adjudication for confirmation of the scope of passive rights, shall be deemed lawful regardless of the aforementioned registration.

On the second ground for appeal

The judgment of the court below is just in accordance with the remanded decision of this court (Supreme Court Decision 94Hu975 delivered on September 29, 1995), and it is not erroneous in the misapprehension of legal principles as to the existence of a utility model, the misapprehension of legal principles as to the non-obviousness of a utility model, the misapprehension of legal principles as to the non-performance of a device as to the (a) invention, and the lack of reasons or the misapprehension of legal principles as to the non-performance of a device, the lack of reasons or the omission of reasons.

All of the grounds of appeal cannot be accepted.

Therefore, the appeal shall be dismissed, and all costs of appeal shall be borne by the claimant who has lost throughout and after the remand. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Yong-sik (Presiding Justice)