(영문) 특허법원 2015.10.30. 선고 2015허444 판결

A) Source: The design of a sttp:/www/www.outlinee.com) on March 28, 201, published in the Mttp (http:/www.com) is the design of a sea boiler valve for a hot water boiler as confirmed by the video.

B) Photographs: [Attachment 2]

2) Compared design 2 (A.9)

A) Source: The design of a boiler valve for the hot boiler boiler as confirmed in the notice "Stop stove" written by B on the Internet B on December 8, 2009.

B) Photographs: [Attachment 3]

C. Details of the instant trial decision

1) On February 14, 2014, the Plaintiff filed a petition for invalidation of the registration of the registered design of this case against the Defendant with the Intellectual Property Tribunal under Article 5(1)1 and 3 of the former Design Protection Act (wholly amended by Act No. 11848, May 28, 2013; hereinafter “former Design Protection Act”) because the registered design of this case is similar to the design under Article 64842 of the design registration. (2) The registered design of this case is a combination of designs under Article 648842 of the design and design registration No. 134513, or a combination of designs under Article 321674 of the design registration and design registration No. 3 of the drawings attached to the specification of the invention under Article 321674 of the Patent Act, and falls under Article 5(2) of the former Design Protection Act. (3) The registered design of this case is an official announcement before filing the petition for invalidation of the registration of this case).

2) Accordingly, the Intellectual Property Trial and Appeal Board held that the foregoing appeal was filed on December 23, 2014, and held that the registered design of this case was identical or similar to the design of Article 648842, and thus, does not fall under Article 5(1)1 and 3 of the former Design Protection Act.

[Judgment of the court below] The ground for recognition is without merit, Gap-3 evidence, and the ground for appeal

2. Summary of the parties’ assertion

A. The plaintiff

The registered design of this case is identical or similar to the comparative design 1 or the comparative design 2, and the comparative design 1 is published on March 28, 201, which was before the application of the registered design of this case, and the comparative design 2 was published on the Internet Blob on December 8, 2009, and thus, the registered design of this case should be invalidated as it falls under Article 5(1)2 and 3 of the former Design Protection Act.

Therefore, the trial decision of this case, which is different from this conclusion, is unlawful.

B. Defendant

In order to determine the similarity of a design, it is necessary to prepare the overall form or the main form of the design. In the video (No. 4) or photograph (No. 5-8) or photograph (No. 9) as to the comparative design 1 submitted by the Plaintiff, only part of the product design appears, and the above materials alone cannot determine the similarity of the comparative design and the registered design of this case. Accordingly, the trial decision of this case, as seen above, is legitimate.

3. Determination as to whether a case falls under Article 5(1)2 or 3 of the former Design Protection Act

A. Whether the comparable design 1 was publicly announced before the application is filed

In addition to the statements in Gap evidence Nos. 4-8, 12, and 13-1 to 5 of the evidence No. 13, the comparative design 1 can be recognized as being posted on the Internet website on March 28, 201, which was the filing date of the registered design of this case, on February 22, 2012, which was the filing date of the registered design of this case, and no other evidence exists to deem otherwise, the comparative design 1 constitutes "design made available to the public through telecommunication lines prior to the filing date of the application for the design registration" under Article 5 (1) 2 of the former Design Protection Act.

B. Preparation for the registered design of this case

(1) Preparation of goods

The registered design of this case and the comparative design 1 are all the objects of the design of this case, which are the 'verboil valves for water boiler' designed to function as water supply control by using the load of plug installed inside the boilers and installed in the water tank above the water level.

2) Preparation of shape and shape

In the registered design of this case, drawings such as plarts, street, and valves combined with each other are presented in its specification, such as plarts, elevations, floor plans, low-level plans, and the state of use. The comparative design 1 does not have any problem in comparison with the registered design of this case, since the video posted in the U2C and the photographs capturing the above video are able to verify the specific shape and shape by using the video displayed in the U2C and the photographs capturing the above video.

Accordingly, the shape and shape of the two designs are as follows in preparation for the overall shape, valves, lines, and paintings.

A person shall be appointed.

2) Specific review

As confirmed through the comparison table above, comparative design 1 and the instant design

A registered design is common in that each part of the design consists of ‘cloft', ‘closion-type', ‘closion-type', ‘closion-typed', and valves combined in a vertical line at the center of the upper part of the set, and the two designs are combined.

In addition, the shape of both designs is identical or similar to each other, and as a whole, it should be seen as equal or similar to the depth and height of plarts, the width and length of plarts as a whole, as well as the proportion according to the flocks of upper and lower length, the flocks of upper and lower length, and the flocks of upper and lower length, etc. formed in the street.

Therefore, the registered design of this case is "design made available to the public through telecommunication lines domestically or overseas prior to the application for design registration under Article 5 (1) 2 of the former Design Protection Act or at least a design similar thereto under subparagraph 3.

C. Determination as to the Defendant’s assertion in this Section

The defendant asserts to the effect that the registered design of this case was made available to the public through telecommunication lines before the application for design registration, since it was made public against the defendant's will, it constitutes an exception to the loss of newness under Article 8 (2) of the former Design Protection Act

However, Article 8 (1) of the former Design Protection Act provides that where a design of a person who has the right to obtain design registration falls under Article 5 (1) 1 or 2, such design shall be deemed not to fall under Article 5 (1) 1 or 2 in applying the provisions of Article 8 (1) and (2) to the design for which an application for design registration was filed within six months from that date, and that Article 5 (1) 1 or 2 shall be deemed not to fall under Article 5 (1) 2, while Article 8 (2) provides that "a person who intends to be subject to paragraph (1) shall submit to the Commissioner of the Korean Intellectual Property Office a written application stating his/her intention and submit documents evidencing the application to the Commissioner of the Korean Intellectual Property Office within 30 days from the filing date of the design registration: Provided, That this provision shall not apply where the design falls

Therefore, even if the registered design of this case was inserted in a hybrid against the Defendant’s will, insofar as the application for the registered design of this case itself was made on February 22, 2012, which was made on March 28, 201, from March 201, which was the date of publication of the aforementioned hub, it cannot be deemed as an exception to the loss of newness under Article 8(2) of the former Design Protection Act, and further, there is no evidence to recognize that the design was inserted in a hybrid against the Defendant’s will, therefore, the Defendant’s above assertion cannot be accepted.

4. Conclusion

Thus, the trial decision of this case, which differs from this conclusion, is unlawful, and the plaintiff's claim for revocation is justified.

Judges

The presiding judge’s second judge

Judge Lee Hun-hoon

Judge Lee Ho-san

Note tin

1) The Plaintiff presented, at the trial decision stage of the instant case, the design No. 648842 of the design registration No. 134513 of the comparative design 1. The design of the design design No. 134513 of the comparative design 2. The design of the comparative design No. 321674 of the Patent Registration No. 32. 3 of the comparative design and the design of “prote and set valves” of the drawings No. 3 of the comparative design. However, in the instant lawsuit, the said design did not be submitted

2) As long as the Plaintiff’s assertion on comparative design 1 is accepted, the remainder of the Plaintiff’s comparative design 2 cannot be separately determined.

Attached Form

A person shall be appointed.

참조조문

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