Article 63 of the Patent Act and the allowable scope for correction of error

The purpose of Article 63 of the Patent Act is to expand or change the scope of the patent right after the establishment of the patent right is registered, but it is not permissible to reduce the scope of the patent claim or correct errors within the extent that the requirements of the patent are met and that is not likely to infringe a third party's right. The correction of errors also includes clarifying the meaning of the patent claim if the description itself does not specify the scope of the patent claim, resolving the deficiencies in the description, and preventing inconsistency or inconsistency between the detailed description of the invention and the scope of the patent claim if the description itself does not specify the scope of the patent claim.

Article 63 of the Patent Act

1. The plaintiff-appellant 1 and the plaintiff-appellant 1 et al., Counsel for the plaintiff-appellant 1 and 1 other

The Commissioner of the Korean Intellectual Property Office

Ruling of the Korean Intellectual Property Office No. 2 on March 31, 1987, or on an appeal to permit correction for 84 years

The case shall be remanded to the Korean Intellectual Property Office by destroying the original trial decision.

We examine the grounds of appeal.

With respect to No. 1:

According to Article 63 of the Patent Act, if the specification or drawings of a patent invention are incomplete, the patentee may file a request for a trial to permit the correction of the specification or drawings only in cases where it falls under the name of the seat of the obscure entry, correction of clerical error, or obscure entry. In such cases, the scope of the patent claim cannot be expanded or modified, and in cases where the scope of the patent claim is reduced, the matters specified in the scope of the patent claim after correction shall be entitled to the patent at the time of the patent application. The purport of the provision is that the extension or alteration of the scope of the patent claim after the establishment of the patent right shall not be permitted, but it shall be deemed that the reduction or alteration of the scope of the patent claim within the extent that the requirements of the patent are met and that the correction of clerical error and that the correction of clerical error shall be allowed to be made to the extent that it is not likely to infringe any third party's right, and such error shall be interpreted to include any inconsistency or inconsistency in the detailed description of the invention and the scope of the patent claim.

According to the original decision, the court below found that the specification of the patent of this case is 30 - 70 % - 30 % - 0 % - 0 % - 30-70 % - 0 % - 0 % - from the ordinary formula of alcohol as of the diversary time of alcoholic content, but it is not clear from the scope of the patent claim that "this is different from ..................." as stated in the statement of "the other dives of this case are different from the other dives of the patented invention" as an alternative alcoholic content from the other dives of the patented invention to the other dives of its general formula (A) or different dives of alcoholic content, or the other dives of alcoholic content are different from the other dives of the patented invention to the other dives of the patented invention as an alternative dives of the patented invention.

However, it is reasonable to determine whether to expand or change the scope of the patent claim itself in determining whether to include a correction or explanation of the scope of the patent claim constitutes a case where the scope of the patent claim is expanded or modified, rather than a formal description of the scope of the patent claim itself in determining whether the scope of the patent claim is a case where the correction or explanation of the scope of the patent claim is an extension or modification of the scope of the patent claim, rather than a formal description of the scope of the patent claim itself, and if the correction is made as such, it constitutes the requirements for the patent and is able to obtain the patent at the time of the patent application. Accordingly, it is reasonable to determine whether the court below's failure to reach this point by misapprehending the legal principles of Article 63 of the Patent Act, which affected the decision of trial, and it is also reasonable to judge whether the scope of the patent claim is an extension or modification of the scope of the patent claim.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the original decision is reversed, and the case is remanded to the Korean Intellectual Property Office appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ju (Presiding Justice)