Article 2 subparag. 7, Articles 16, 17, 38, 54(1), 56, 61, 83, 84, and 85 of the New Plant Variety Protection Act; Article 1, 3-2, and 4 of the Addenda (amended by Act No. 11458, Jun. 1, 2012); Article 2 subparag. 3 (see current Article 2 subparag. 1 of the New Plant Variety Protection Act) of the former Seed Industry Act (Amended by Act No. 11458, Jun. 1, 2012); Article 9 (see current Article 2 subparag. 7 of the New Plant Variety Protection Act), Article 13-2 (see current Deletion), Article 57 (see current Article 56 of the Protection of Plant Varieties), Article 59 (New Plant Variety Protection Act); Article 13(1) of the former Seed Industry Act (see current Article 58 of the Plant Variety Protection Act); Article 19(1) and Article 9(1) of the current Plant Variety Protection Act

The Steering Committee of the University of the United States of America and one other (Attorney Park Sung-sung, Counsel for the plaintiff-appellant)

Defendant (Attorney Choi Jong-soo et al., Counsel for defendant-appellant)

September 10, 2019

Seoul Central District Court Decision 2016Gahap542169 Decided November 9, 2017

1. The part of the judgment of the court of first instance against the defendant as to the prohibition and prevention of infringement and the claim for destruction of infringed products is revoked, and all of the plaintiffs' claims against the defendant as to the revoked part are dismissed.

2. The court shall modify the part concerning the claim for payment of money to the defendant in the judgment of the first instance (except for the part concerning the protected plant variety stated in paragraph 1 of the attached Table 1), including the claim extended by the plaintiffs and the claim added by the plaintiff Sbluber corporation to the defendant in the judgment of the first instance.

A. The defendant:

1) With respect to KRW 107,50,00 and KRW 87,500,00 among them, 5% per annum from May 2, 2017 to November 15, 2019; 15% per annum from the next day to the date of full payment; 20,000,000 per annum from September 12, 2018 to November 15, 2019 to the date of full payment; and 12% per annum from the next day to the date of full payment;

2) The amount of KRW 30,00,000 and 12% interest per annum on September 10, 2019 to November 15, 2019 and the amount of 30,00,000 per annum on the part of the Plaintiff Incorporated Group Inc. from the following day to the date of full payment.

sub-payment.

B. The plaintiffs' primary claims, the plaintiff company's primary claims, the plaintiff company's preliminary claims, the plaintiff company's U.S. University Operation Committee's other preliminary claims, and the plaintiff company's remaining secondary claims are all dismissed.

3. Of the total litigation cost between the plaintiffs and the defendant, 2/3 shall be borne by the plaintiffs, and the remainder by the defendant.

4. Paragraph 2 (a) of this Article may be provisionally executed;

Purport of claim

1. The defendant,

(a) not engage in any act of propagation, production, preparation (preparation), transfer, lease, export, import or offering for transfer or lease (including display for transfer or lease) of each plant variety listed in the Schedule I, directly or through a third party;

B. All of the seeds of each variety listed in the separate sheet No. 1, which the Defendants keep or possess, shall be discarded at the Defendant’s farm, office, research institute, warehouse, or any other place.

2. For the purpose of paragraph (1), the defendant shall not print, reproduce, distribute, or prepare and display online posts advertising each variety listed in the separate sheet No. 1.

3. The defendant

A. The principal and conjunctively, the amount of KRW 250,00,000 and the amount calculated at the rate of KRW 5% per annum from March 15, 2012 to the date on which a copy of the instant complaint was served, and the amount of 15% per annum from the following day to the date of full payment, shall be paid in collaboration with the non-party 1.

B. In line with the primary, primary, and secondary, Nonparty 1 and Naco Co., Ltd. (hereinafter “Gaco”) pay 125,00,000 won per annum to Plaintiff Co., Ltd. (hereinafter “Plaintiff Co., Ltd.”) and 5% per annum from October 2, 2015 to the date on which the duplicate of the instant complaint was served, and 15% per annum from the following day to the date on which the copy of the instant complaint was served.

Purport of appeal

The part against the defendant in the judgment of the first instance against the plaintiffs is revoked, and all the plaintiffs' claims against the defendant corresponding to the revoked part are dismissed.

1. Scope of the judgment of this court;

In the first instance trial, the plaintiffs were entitled to temporary protection against each of the protected varieties listed in the separate sheet No. 1 (hereinafter collectively referred to as "each of the protected variety of this case", and individually referred to as "titles listed in the separate sheet No. 1"), claims for prohibition and prevention of infringement under Article 83 of the New Plant Variety Protection Act, claims for destruction of infringing products, or claims for destruction of infringing products under Article 1580 of the former Unfair Competition Prevention and Trade Secret Protection Act (amended by Act No. 15580 of April 17, 2018; hereinafter referred to as "former Unfair Competition Prevention Act"), and claims for prohibition and prevention based on the unfair competition acts under Article 2 subparag. 1 (j) of the former Unfair Competition Prevention Act and damages from infringement of the protected variety of this case under Article 2 subparag. 1 (j) of the former Unfair Competition Prevention Act (hereinafter referred to as the "Information and Communications Network Act"), and claims for prevention of infringement of each of the protected variety of this case and damages from infringement of the protected variety of this case No. 1 (hereinafter referred to the plaintiff No. 2 of this case) and the former Variety Protection Act.

The court of first instance rejected the plaintiffs' claim for destruction of the seeds of each protected variety of this case (including inserted seedlings and organized seedlings) in the part of the plaintiffs' claim against the defendant and the co-defendant 1, baco-defendant 1, and baco-defendant 1 in the part of the claim for prohibition of infringement or the claim for prohibition of unfair competition, and the part of the claim for destruction of each infringed product, which are kept or held in a place other than "the part of the claim for prohibition of indirect reproduction, etc. through a third party" among the part of the claim for prohibition of infringement or the part of the claim for prohibition of unfair competition against the defendant and the first instance court dismissed all of the remaining claims against the defendant and the co-defendant 1 and baco-defendant 1 in the first instance court.

Accordingly, only the Defendant filed an appeal against the losing part, and thereafter, the Plaintiffs withdraw all the lawsuits based on the claim for prohibition of unfair competition, prevention claim, claim for destruction of infringing products, claim for damages, and claim for prevention claim based on the unfair competition act under Article 2 subparagraph 1 (j) of the former Unfair Competition Prevention Act against the Defendant, and the actions based on Article 50-8 of the Information and Communications Network Act, and expand the claim for the portion of claim for payment of the variety listed in [Attachment 1] section 3 as to the variety listed in [Attachment 1 List 3], and add the lawsuit for the claim for the acquisition of the money to the second preliminaryly, the object of the trial in this court is each temporary protection right related to the remaining protected variety except for the plaintiffs' non-existence theory against the Defendant, the right of protection, the right of protection, the right to claim for destruction, and the right to claim for destruction of infringing products based on each of the protected variety, the right to protection, the right to protection, the right to infringement of Plaintiff’s exclusive license infringement, the right to claim for damages based on each of the plaintiff under Article 31-2 of the former Seed.

2. Presumed factual basis

(a) A party;

1) The Plaintiff’s non-permanent university is a school foundation operating the U.S. non-permanent university, and is a variety protection right holder who has developed each protected variety of the instant plant variety and completed the registration of plant variety pursuant to the Plant Variety Protection Act in Korea, even after completing patent registration with the U.S. Intellectual Property Office as described in the following (b).

2) On December 1, 2011, the Plaintiff’s non-permanent university granted exclusive license to each of the protected plant varieties of this case in areas including the Republic of Korea on reproductive, seedlings, and heat selling. On December 1, 201, the Plaintiff’s non-permanent university transferred the exclusive license of each of the protected plant variety to HOTRIFR S.A. (hereinafter “the part on the part of the Plaintiff”) to SH (including HOTRTRITN NTRITNN NAAIN A. (i.e., its own company) and entered into an exclusive license agreement with the Plaintiff on the exclusive license of the instant case (hereinafter “the part on the part of the Plaintiff’s exclusive license of this case”) and entered into an exclusive license of the Plaintiff into an agreement with the Plaintiff on the exclusive license of each of the instant protected plant variety in the Republic of Korea (hereinafter “the part on the part of the Plaintiff’s exclusive license of this case”).

3) The Defendant, along with the non-party 2 and the wife non-party 3, was a person who planted and sold Blube seedlings, including Drpers, Libers, and Orala (hereinafter referred to as “ protected variety, such as Drpers”) in the operation of a mutually financed source (name 1 omitted (name : ○○○○) (name : omitted) of the name “(name 1 omitted)” (hereinafter referred to as the “instant farmland center”).

B. Application for plant variety protection, registration, etc. of each protected plant variety of this case

1) The Plaintiff’s non-permanent university filed an application with the U.S. Intellectual Property Office for a patent for each of the protected plant varieties of this case with the U.S. Intellectual Property Office on August 24, 2004; Liber on September 14, 2004; and on September 28, 2004, Liberon completed each of the patent registrations on March 15, 201.

2) Article 11 of the former Seed Industry Act and Article 20 subparag. 28 of the Enforcement Rule of the same Act (wholly amended by Ordinance of the Ministry of Agriculture, Food and Rural Affairs No. 49, Oct. 18, 2013); and publication of crops subject to plant variety protection (before repealed by Ordinance of the Ministry of Agriculture, Food and Rural Affairs No. 2014-52, May 16, 2014) expanded crops subject to plant variety protection into all plants; and on January 7, 2012, Bluos was designated as plant variety protection, on January 10, 2012, the Plaintiff’s University filed an application for plant variety protection for each of the protected plant variety of this case with the National Seed Service on March 15, 2012 (hereinafter “the date of publication of the application of the application of the application of plant variety protection”); after examination of cultivation, the registration of each of the protected plant variety of this case was made pursuant to Article 1 of the Addenda to the Plant Variety Protection Act (No. 1457, subparagraph 21231-31-21-2, etc.

3) Each of the protected plant variety of the instant case, as described in the separate sheet No. 1, has been registered for each of the protected plant variety of the instant case, as indicated in the separate sheet No. 1, on October 2, 2015, with respect to Dr. Dr., and Dr., with respect to Dr., on February 3, 2016, Dr. was registered as the first exclusive licensee of each of the protected plant variety of the instant case. On the same day, the registration of transfer of exclusive license for each of the protected plant variety of the instant case was completed to Br. Br., Plaintiff Br., following the Maz.

C. The defendant's propagation and sale of Blue seedlings

1) On December 2009, the Defendant, along with Nonparty 4, operated “△△△△△△△△△△△△△” (Internet address 1 omitted). On June 8, 2010, on two occasions, including 100 weeks and 100 weeks on November 26, 2010, in Japan, one of the instant varieties under the name of the Defendant in the name of the Defendant in Japan, imported 1,100 shares, among the instant varieties, and passed an isolation cultivation inspection under the Plant Protection Act through quarantine cultivation, and sold them.

2) 피고는 2011. 2. 17. 무렵 미국에 거주하고 있던 아들인 소외 2를 통하여 미국 ‘□□□□□□□□ □□□□□□’에서 드래퍼 묘목 100주, 리버티 묘목 100주, 오로라 묘목 210주 합계 410주를 미화 총 4,150달러에 구입하였고, 2011. 2. 25. 미국 ‘◇◇◇◇◇◇◇◇ ◇◇◇◇ ◇◇◇◇◇◇◇’에서 피고 명의로 드래퍼 묘목 70주, 리버티 묘목 45주, 오로라 묘목 50주 합계 165주를 미화 총 1,845달러에 구입하였다. 또한 피고는 2011. 2. 15.부터 2011. 2. 22.까지 사이에 미국에서 또 다른 블루베리 품종인 알라파하, 레벨, 카멜리아, 탑햇, 스프링하이, 프리마돈나, 오크라코니, 파우더블루, 윈져, 에메랄드의 묘목 합계 660주를 구매하였다.

3) The Defendant, through China, has taken the blue seedlings purchased as above into the form of glue seedlings or part thereof into the form of ppuri. From March 4, 2011 to August 5, 2011, the blue plant variety, which was taken into the form of a tree with roots, was cultivated in an isolated plant at the National Plant Quarantine Service affiliated with the National Plant Quarantine Service, and passed an inspection for quarantine and cultivation under the Plant Protection Act on August 5, 201, and the blue plant variety, including the dlus, taken into the form of inserted plant variety, was isolated from the clue of the instant farmland located in Seongbuk-gun ( Address omitted) around March 4, 2011 and passed an inspection for quarantine and cultivation under the Plant Protection Act on September 5, 2011.

4) From around September 201 to January 201, 201, the Defendant grown seedlings of a protected plant variety, such as Dragazers, etc., which were isolated as above and passed an quarantine inspection under the Plant Quarantine Act, and cultivated seedlings of a protected plant variety, etc., such as Dragazers, by inserting them well, and inserting them again. From April 2012, the Defendant, as shown in the attached Table 2, sold a total of 98 square meters in total at 5,98 square meters in 1,00 square meters in 5,98 square meters in 1,00,000 in 20,000 in 20,000 in total, including 4,00 square meters in 1,00 in 20,000 in 20,000 in 20,0000 in 20,0000 in 20,000 square meters in 38,000 square meters in 2,000.

D. Details of the defendant's business registration and seed business registration

1) Article 137(1) of the former Seed Industry Act provides that "any person who intends to run a seed business shall have facilities prescribed by Presidential Decree and register with the head of a Si/Gun/Gu." Article 47(1) of the former Enforcement Decree of the Seed Industry Act (amended by Presidential Decree No. 2415, Oct. 29, 2012) provides that "any person who intends to register a seed business pursuant to Article 137(1) of the Act shall have at least one facility and a seed manager under attached Table 2-5) and submit (including submission by electronic document) to the head of a Special Self-Governing Province, the head of a Si/Gun/autonomous Gu having jurisdiction over the location of the main production facility as prescribed by Ordinance of the Ministry for Food, Agriculture, Forestry and Fisheries (including submission by electronic document)". The defendant loaned the name of Nonparty 1 who owned the land in his/her own relationship with him/her and has completed the registration of a seed business on December 21, 2011.

(5) Article 42(1) [Attachment 2] of the former Enforcement Decree of the Seed Industry Act (amended by Presidential Decree No. 24155, Oct. 29, 2012)

Facility standards for seed business;

2. Overwater; and

At least five weeks for each tree variety held in the area of at least 100a and at least 50a of the total number of seedlings (booms) in the table classification contained in the main sentence - a person shall own the seeds.

(M6) Article 42(1) [Attachment 2] of the former Enforcement Decree of the Seed Industry Act (amended by Presidential Decree No. 24155, Oct. 29, 2012)

Facility standards for seed business;

2. Overwater; and

It shall be owned by a person who has met at least five weeks for a tree variety held in the area of at least 100a but at least 30a of a large number of seedlings (booms) in the table classification contained in the main sentence, or a person who has obtained a right to use the tree variety, such as a right of lease for at least five years.

2) On January 2, 2012, the Defendant: (a) lent Nonparty 1’s name; (b) completed the business registration for seeds and seedlings industry by using the trade name to ○○○○○○; and (c) filed a report on the correction of business registration to add himself/herself as joint business operators on March 27, 2012; (b) subsequently, on December 2, 2013, the Defendant filed a report on the correction of business registration to the effect that Nonparty 1 is excluded from joint business operators; and (c) on May 30, 2016, the Defendant changed the trade name to “(trade name omitted)”.

(e) Progress of the relevant provisional disposition case;

1) On May 14, 2015, the Plaintiff’s non-permanent university and the Plaintiff’s Bank of Korea (hereinafter “The Plaintiff”) had a variety protection right or an exclusive license against the Defendant and Nonparty 1, the Busan District Court 2015Kahap10264, with respect to the remainder of the protected variety of this case except Orala, and the right to interim protection against Orala. The Defendant and Nonparty 1, without the Plaintiff’s consent from the Plaintiff’s U.S. University and the Association of Real Estate, filed an application for provisional injunction against infringement, including the variety protection right, by asserting that the Plaintiff violated the trademark right of the Plaintiff’s non-permanent university by selling seedlings of each of the protected variety of this case using the name of each of the protected variety of this case, which is the Plaintiff’s non-permanent university, and by selling seedlings, etc. of each of the protected variety of this case.

2) On July 15, 2015, the court rejected the application for provisional disposition on the grounds that the defendant and the non-party 1 sold the seedlings of the protected plant variety of this case and used the denomination as the name of each protected plant variety, and it cannot be deemed that the plaintiff non-exclusive university and the non-party 1 had prepared a domestic business on the basis that the defendant and the non-party 1 had prepared a domestic business on the protected plant variety before the date of publication of the patent application, and the defendant and the non-party 1 had a duty to settle reasonable price for the above business in the Republic of Korea, the court can continue the business in accordance with the non-exclusive license pursuant to Article 13-2 (4) of the former Seed Industry Act even though they had a duty to settle the price determined through the subsequent litigation on the protected plant variety, and the defendant and the non-party 1 sold the seedlings of the protected plant variety of this case, but they were merely using the name as the name of each protected plant variety, and thereafter rejected the application for provisional disposition.

3) Meanwhile, around September 7, 2016, the Defendant: (a) accepted the first 20th of December 20, 201 (the day before December 21, 201, which registered seed business under the name of non-party 1); (b) accepted the first 20th of October 20 of the KMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMEEEEEEEEE 1.).

4) On June 27, 2016, Nonparty 5 was prosecuted against Nonparty 5 on the violation of the Plant Variety Protection Act due to purchasing temporary protection rights or plant variety rights of Plaintiff Non-Party 5 at the non-permanent university for non-regular hours, and the suspension of the Plaintiff Sblue’s exclusive license from Defendant and Nonparty 4, and distributing them without permission. On September 29, 2016, the court found Nonparty 5 guilty of all the facts charged, and sentenced Nonparty 5 to the suspension of the execution of eight years (Seoul District Court Sungnam Branch Branch Branch Branch Branch Branch Branch 2016No1584). The above conviction became final and conclusive on October 7, 2016.

【Based on Recognition】 Each description and image of the evidence as referred to in subparagraphs 1 through 8, 15 through 30, 34 through 39, 42, 51 through 54, Eul’s evidence as referred to in subparagraphs 1 through 8, 10 through 15, 18, 39 (including various numbers; hereinafter the same shall apply), and the purport of the whole pleadings

3. Determination as to the plaintiffs' prohibition of infringement and the plaintiffs' claim for prevention of infringement and the claim for destruction of infringed products

【Plaintiff’s argument】

The plaintiffs were not granted non-exclusive licenses under Article 13-2 (4) of the former Seed Industry Act since the date of the establishment of an exclusive license for the protected variety, such as plaintiffs Drpers, from the date of the publication of the protected variety to the date of the registration of the protected variety such as Drpers, and since the date of the publication of the protected variety from the date of the publication of the protected variety to the date of the establishment of the exclusive license. However, since the date of the establishment of the exclusive license for the protected variety such as plaintiffs Prrpers, the defendant did not own a non-exclusive license under the exclusive license under the exclusive license for the protected variety (hereinafter referred to as "provisional protection right, etc."), since the publication of the relevant protected variety such as Drpers, etc. was done after the publication of the protected variety, and it did not constitute an act of selling seedlings or sexual trees in an adequate size and actually inserting them after the publication of the protected variety, and it did not constitute an infringement upon the plaintiff's publication of the protected variety after the publication of the protected variety.

【Defendant’s Claim】

The defendant asserts that the sale of seedlings of a protected plant variety, such as the druper reproduced by means of insertion, etc. before the date of publication of the case, does not affect the plaintiffs' plant variety right, etc. under Article 13-2 (3) of the former Seed Industry Act, and that since the defendant had conducted or prepared the exploitation business of the protected plant variety, such as Druper, etc. before the date of publication of the case, the defendant has a non-exclusive license for the plant variety right of the protected plant variety, such as Druper, etc. under Article 13-2 (4) of the former Seed Industry Act, so the sale of seedlings of the protected plant variety, such as Druper, after the date of publication of the

[Judgment]

A. Relevant statutes

▣ 식물신품종 보호법

Article 2 (Definitions)

The terms used in this Act shall be defined as follows:

7. The term "exploitation" means an act of propagating, producing, preparing, assigning, leasing, exporting, importing, or subscribing for transfer or lease (including display for transfer or lease; hereinafter the same shall apply) a seed of a protected plant variety;

Article 16 (Requirements for Plant Variety Protection)

Plant varieties shall be entitled to plant variety protection under this Act, if:

1. Novelty;

2. Separateness;

3. Uniformity;

4. Stability;

5. The denomination of a variety under Article 106 (1);

Article 17 (Newity)

(1) A plant variety shall be deemed new as provided for in subparagraph 1 of Article 16, if seeds and harvestss therefrom have not been transferred for the purpose of use for at least one year in the Republic of Korea, or for at least four years (six years in cases of fruit trees and forest trees) in other countries, prior to the filing date of the application for plant variety protection under Article 32 (2) (or before the filing date of the first application for plant variety protection, if a right of priority is claimed under Article 31 (1)).

Article 38 (Right of Provisional Protection)

(1) An applicant for plant variety protection shall have the exclusive right to conduct the applied plant variety commercially and industrially from the date of publication.

(2) If an application falls under any of the following subparagraphs after the publication of the application, the right under paragraph (1) shall be deemed never to have arisen:

1. Where an application for plant variety protection has been abandoned, withdrawn, or invalidated;

2. Where a decision to refuse an application for plant variety protection becomes final and conclusive;

(3) Where a person who has a right under paragraph (1) exercises such right, and an application for plant variety protection falls under any subparagraph of paragraph (2), he/she shall be liable to compensate the other party for damage caused by the exercise of such right.

Article 56 (Effects of Variety Protection Right)

(1) A variety protection right holder shall have an exclusive right to exploit the protected variety commercially and industrially: Provided, That the foregoing shall not apply where the exclusive license is granted with respect to the variety protection right, to the extent that the exclusive licensee has an exclusive right to exploit the protected variety pursuant to Article 61 (2).

(2) In addition to the right under paragraph (1), a variety protection right holder shall also have an exclusive right to exploit the harvested material harvested from the seeds of a protected plant variety for business purposes or directly produced from the harvested material by using stolen seeds without permission of the variety protection right holder: Provided, That this shall not apply to any product directly produced by a person who has no knowledge that he/she does not have a legitimate right to such harvested material.

Article 61 (Exclusive License)

(1) A variety protection right holder may grant an exclusive license of the variety protection right to another person.

(2) A person who has an exclusive license granted under paragraph (1) shall have an exclusive right to exploit the relevant protected variety commercially and industrially to the extent prescribed by the relevant license agreement.

Article 83 (Right to Request Prohibition against Infringement of Right, etc.)

(1) A variety protection right holder or an exclusive licensee may request a person who infringes or is likely to infringe on his/her right to discontinue or refrain from such infringement.

(2) The holder of a plant variety right or the exclusive licensee may request the destruction of articles by which the infringement was committed, removal of facilities offered for the infringement, and other acts necessary for the prevention of infringement when making the request under paragraph (1).

Article 84 (Acts Deemed Infringement)

An act falling under any of the following subparagraphs shall be deemed an act infringing a variety protection right or an exclusive license:

1. Exploitation another person's protected variety commercially or industrially without permission of the variety protection right holder or the exclusive licensee;

2. Using the denomination of a plant variety identical or similar to the denomination of a protected plant variety of another person for a plant variety of the genus or species to which the protected plant variety belongs.

Article 85 (Claims for Damages)

(1) A variety protection right holder or an exclusive licensee may claim compensation for damage to a person who has infringed his/her right intentionally or negligently.

(2) Articles 128 and 132 of the Patent Act shall apply mutatis mutandis to claims for compensation for damage under paragraph (1).

▣ 식물신품종 보호법 부칙(제11457호, 2012. 6. 1.)

Article 1 (Enforcement Date)

This Act shall enter into force on the date one year has elapsed after its promulgation.

Article 3-2 (Transitional Measures for Protection, etc. of Already Registered Varieties)

Where a plant variety is protected upon application for plant variety protection or application for plant variety protection under Article 13-2 of the former Seed Industry Act as at the time this Act enters into force, Article 13-2 of the former Seed Industry Act shall apply to the plant variety right (this Article, August 13, 2013).

Article 4 (Transitional Measures Concerning Applications, Registration, Claims, etc. for Plant Variety Protection, etc.)

(1) A person who has applied for plant variety protection pursuant to Article 26 of the previous Seed Industry Act at the time this Act enters into force shall be deemed to have applied for plant variety protection pursuant to Article 30.

▣ 구 종자산업법(2012. 6. 1. 법률 제11458호로 전부 개정되기 전의 것)

Article 2 (Definitions)

The terms used in this Act shall be defined as follows:

3. The term "seeds" means seeds, mushroom seeds, vegetables, or spawns used for propagation, cultivation, or cultivation;

9. The term "exploitation" means an act of propagating, producing, preparing, assigning, leasing, exporting, importing, or subscribing for transfer or lease (including display for transfer or lease; hereinafter the same shall apply) a seed of a protected plant variety;

Article 13-2 (Protection of Established Varieties)

(1) A plant variety already known at the time of designating species or genus of crops entitled to plant variety protection in accordance with Article 11, which falls under any of the following subparagraphs, shall, if an application for plant variety protection is filed within one year from the date of designation as such species or genus of crops entitled to plant variety protection, be deemed new and entitled to plant variety protection under this Act, notwithstanding Article 13 (1):

3. A variety, the plant variety right of which is registered abroad;

(2) The duration of a plant variety right for a plant variety granted pursuant to paragraph (1) shall be counted from the date falling under any of the following subparagraphs: Provided, That where such plant variety falls under at least two of the following subparagraphs, it shall begin from the date of

3. For a variety under paragraph (1) 3, the date of registration for establishment of the plant variety right;

(3) The variety protection right of a variety falling under any subparagraph of paragraph (1), the establishment of which has been registered pursuant to Article 55 (1), shall not extend to the exploitation of such variety before the date on which an application for such variety is published.

(4) Where a variety is protected pursuant to paragraph (1), a person who runs or prepares the exploitation business of the protected variety in the Republic of Korea before the date of publication of the application for the variety, shall have a non-exclusive license for the plant variety right within the scope of purpose of such business exploitation or preparation. In such cases, a person who holds the non-exclusive license shall pay reasonable consideration to the plant

Article 57 (Effects of Variety Protection Right)

(1) A variety protection right holder shall have an exclusive right to exploit the protected variety commercially and industrially: Provided, That the foregoing shall not apply where the exclusive license is granted with respect to the variety protection right, to the extent that the exclusive licensee has an exclusive right to exploit the protected variety pursuant to Article 62 (2).

Article 59 (Restriction on Effect of Variety Protection Right)

A variety protection right under Article 57 shall not extend to any seed of the protected variety, its harvests, or any product directly produced therefrom, which has been sold or otherwise marketed in the Republic of Korea by the holder of the variety protection right, exclusive license, or nonexclusive license, unless such act falls under any of the following subparagraphs:

1. An act of propagating the seed of the protected variety by using the seeds of the protected variety, its harvests or any product directly produced therefrom, which has been sold or otherwise marketed; and

2. An act of exporting the seeds of the protected variety, its harvests, or any product directly produced therefrom for the purpose of propagation.

(b) Protection of a variety known under Article 13-2 of the former Seed Industry Act;

(1) Circumstances such as the enactment of the New Plant Variety Protection Act and the amendment of the Addenda thereto

In the past, the Seed Industry Act combines substantive provisions on the guarantee, distribution and management of seeds and procedural provisions on the protection of varieties, and the procedural provisions on the application, examination, registration, etc. of new varieties in the Seed Industry Act separates procedural provisions on the application, examination, registration, etc. of new varieties in the Seed Industry Act and enacted the Plant Variety Protection Act on June 1, 2012 and implemented June 2, 2013 in order to systematically protect the rights of the breeders of new varieties.

In order to obtain plant variety protection under the Act on the Protection of New Varieties of Plant Varieties, the requirements for newness, distinction, uniformity, stability, and unique denomination of plant variety under Article 16 of the Act on the Protection of New Varieties of Plant Varieties shall be met. According to Article 17(1) of the Act on the Protection of New Varieties of Plant Varieties, the seeds and harvests have not been transferred for the purpose of use for at least one year in Korea and for at least four years in other countries (six years in cases of fruit trees and trees) in other countries before the date of application for plant variety protection.

On the other hand, the Protection of New Plant Varieties Act did not introduce the provisions on variety protection of a variety known in Article 13-2 of the former Seed Industry Act, which was recognized as an exception to newness in the process of the aforementioned enactment without the transitional provisions, so the new plant variety protection Act applied for the protection of a variety applied during the grace period (from January 7, 2012 to January 6, 2013) pursuant to Article 13-2 of the former Seed Industry Act and applied for the protection of a variety under Article 13-2 of the former Seed Industry Act for the protection of a person who is conducting or preparing a business in the business before the date of publication of the known plant variety, as a non-exclusive license recognized in accordance with Article 13-2 (4) of the former Seed Industry Act was not recognized, and thus, there was a concern that a bona fide victim may be a bona fide victim as it was newly established on August 13, 2013 and applied for the protection of a new plant variety under Article 13-2 of the Seed Industry Act.

2) Interpretation of Article 13-2(3) and (4) of the former Seed Industry Act

According to Article 13-2 (1) 3 of the former Seed Industry Act, a variety already known at the time of designating species or genus of crops eligible for plant variety protection in a foreign country may be deemed new if an application for plant variety protection is filed within one year from the date of designation as species or genus of crops eligible for plant variety protection, even in cases of a variety the plant variety right of which is established and registered in the foreign country. In such cases, Article 13-2 (3) of the former Seed Industry Act provides that the exploitation of the protected plant variety is not limited to the exploitation of the protected plant variety before the date of publication of the application, and Article 13-2 (4) of the same Act provides that a person who is conducting, or preparing for, the exploitation of the protected plant variety in the Republic of Korea before the date of publication of the variety shall have a non-exclusive license as to the protected plant variety right within the scope of the purpose of the project being implemented or prepared, and a person who has a non

However, the former Seed Industry Act or the International Convention for the Protection of New Plant Varieties (hereinafter “UPOV Treaty”) established a provisional protection system at the time of the second amendment in 1978 at each country’s discretion (Article 7(2)) and, at the time of the third amendment in 191, the provisional protection system was established to protect the breeder, and the provisional protection system was also established under Article 13 (Article 13) with respect to the specific contents of the provisional protection system as to the act of infringement for the period from the filing to the filing date of the registration. Korea, on January 7, 2002, had the provisional protection system established under Article 5024 of the Act on the Protection of New Plant Varieties to the effect that the provisional protection right of Article 13 (Article 13) was established under Article 5024 of the Act on the Protection of Plant Varieties and the provisional protection right of Article 13 (2) of the Act on the Protection of Plant Varieties from the date of the establishment of the provisional protection right to the same Article 901 of the Seed Protection Act.

On the other hand, a variety protection right comes into effect upon registration of establishment (Article 54(1) of the New Plant Variety Protection Act), and it is a principle that the effect of a variety protection right of a protected plant variety shall only be effective after registration of establishment. However, the effect of a variety protection right of a protected plant variety established and registered under Article 13-2(1) of the former Seed Industry Act shall also extend to the exploitation made before registration after the date of publication under paragraph (3) of the same Article.

According to the above provision, it is reasonable to interpret that the exploitation of a variety already made by a person who runs or prepared the exploitation business of the protected variety in the Republic of Korea before the date of publication of the publication of the variety known in the Republic of Korea does not have the effect of the plant variety right, and the exploitation thereafter shall have the effect of the plant variety right, but it does not constitute an infringement and shall pay a reasonable consideration as

C. Whether the Defendant’s propagation of the seedlings of the protected plant variety, such as dragas, before the date of publication of the instant plant variety or the display, etc. of the reproduced seedlings for sale or sale after the date of publication of the instant plant variety becomes effective, such as dragas, etc.

1) Article 2 subparagraph 9 of the former Seed Industry Act defines the term "exploiting" as "an act of propagation, production, preparation, transfer, lease, export, import, or subscription for transfer or lease (including display for transfer or lease; hereinafter the same shall apply) of seeds of a protected variety". Article 57 (1) provides that "a variety protection right holder shall have the exclusive right to exploit the protected variety commercially and industrially." Meanwhile, Article 13-2 (1) provides that "a variety already known at the time of designating species or genus of crops entitled to variety protection pursuant to Article 11 by Ordinance of the Ministry for Food, Agriculture, Forestry and Fisheries, and falling under any of the following subparagraphs shall not be deemed new and protected under this Act if an application for plant variety protection is filed within one year from the date of designation or species of the crops entitled to variety protection, notwithstanding Article 13 (1)." Article 57 (1) provides that "a variety falling under any subparagraph of paragraph (1) of the same Article shall not be deemed plant variety protection right prior to the date of publication."

However, Article 2 subparag. 9 of the former Seed Industry Act provides that, in addition to the act of propagating seeds of a protected variety, an act of transferring or subscribing for transfer of the seeds of the protected variety (including exhibition for transfer) shall also be “exploiting” separate from propagation. Article 57(1) of the former Seed Industry Act provides that a variety protection right holder shall have an exclusive right to exploit the protected variety commercially. However, “the initial exploitation of the protected variety” refers to an act of propagating the seeds of the protected variety; (2) It restricts the effect of the variety protection right known for the protection of a variety already known prior to the date of publication, but it does not fall under the category No. 3 of the former Seed Industry Act by applying Article 59 of the former Seed Industry Act to all the seeds of the protected variety already known prior to the date of publication of the protected variety protection right holder’s application, for the purpose of propagation of the protected variety prior to the date of publication of the protected variety protection right holder’s application by Article 13-2 of the former Seed Industry Act.

Meanwhile, as seen earlier, Article 2 Subparag. 9 of the former Seed Industry Act defines the term “exploiting” as “an act of propagation, production, preparation, transfer, lease, export, import, or subscription for transfer or lease (including display for transfer or lease) of the seeds of a protected plant variety. However, there is no clear definition provision as to what the act of propagating the seeds is. However, under Article 2 Subparag. 3 of the former Seed Industry Act, the term “seed” refers to seed, mushroom seeds, trophosomes, trophys, or spats used for propagation, cultivation, or cultivation, and ordinary seedlings refers to “vegetable tree that is being raised in a seed field or for transplantation,” and the term “an act of increasing the seeds of a seed field” refers to an act of increasing the seeds of a seed field by increasing the seeds of a seed field from “an act of increasing the seeds of a seed field” or “an act of increasing the seeds of a seed field by increasing the seeds.”

2) 이 사건에 관하여 보건대, 앞서 본 바와 같이 드래퍼 등 보호품종은 알려진 품종으로서 드래퍼 등 보호품종의 품종보호에 관하여는 식물신품종 보호법 부칙 제3조의2에 따라 구 종자산업법 제13조의2 가 적용된다고 할 것인바, 앞서 본 전제 사실과 갑 제46호증, 갑 제53호증의 54, 을 제10, 11, 13, 33 내지 42호증의 각 기재 및 영상에 변론 전체의 취지를 종합하여 인정할 수 있는 다음과 같은 사실과 사정 즉, ① 블루베리 묘목의 증식은 접목, 삽목, 종자번식, 조직배양 등의 방법을 통해 이루어지는바, 그중 삽목은 모수의 가지를 잘라내어 토양이 담긴 삽목판 또는 트레이에 꽂아 발근시키는 방법으로서 삽목시기에 따라 숙지삽과 녹지삽으로 나뉘는데, 전년도의 경화된 가지를 이용하여 2월 말에서 4월 초까지 이루어지는 숙지삽의 경우 삽목 후 약 80일 내지 100일 만에 발근하고, 6월 초에서 8월 초까지 이루어지는 녹지삽의 경우 삽목 후 30일 내지 40일 만에 발근하는 것으로 보이는 점, ② 피고는 이 사건 출원공개일 이전부터 블루베리 재배에 관심을 가지고 블루베리 관련 인터넷 카페를 운영하면서 일본에서 블루베리 묘목을 들여와 식물방역법에 따른 격리재배검사에 합격하는 등으로 블루베리 묘목 관련 사업을 준비하고 있던 중, 2012. 1. 7. 블루베리가 품종보호 대상작물로 지정되기 이전으로서 이 사건 출원공개일(2012. 3. 15.) 이전인 2011. 2. 17. 및 2011. 2. 25. 미국에서 드래퍼 등 보호품종 등의 블루베리 묘목을 구입한 후 중국을 거쳐 2011. 3. 2. 드래퍼 등 보호품종의 블루베리 묘목의 경우 삽수 형태로 들여왔고, 2011. 3. 4.부터 피고 운영의 이 사건 농원에서 격리 재배하여 2011. 9. 5. 식물방역법에 따른 격리재배검사에 합격하였으며, 2011. 9. 무렵부터 2012. 1. 무렵까지 사이에 위와 같이 격리재배검사에 합격한 드래퍼 등 보호품종의 묘목을 모수로 하여 그 모수에서 가지를 잘라내어 다시 삽목하는 방법으로 드래퍼 등 보호품종의 묘목을 재배한 점, ③ 피고가 미국에서 구입하여 국내로 들여온 드래퍼 등 보호품종의 삽수는 2011. 3. 4. 무렵부터 2011. 9. 5. 격리재배검사에 합격할 때까지 피고의 이 사건 농장에 있는 비닐하우스에서 배양토가 담긴 육묘 트레이에서 삽목의 형태로 재배되었고, 2011. 9. 5. 격리재배검사에 합격한 후 다시 격리재배검사에 합격한 드래퍼 등 보호품종의 묘목을 모수로 한 삽목 역시 같은 방법으로 진행된 것으로 보이는바, 드래퍼 등 보호품종에 대한 피고의 삽목 시기 및 방법과 아울러 앞서 본 블루베리 묘목의 삽목 과정에 따른 발근 시기 등에 비추어 보면, 적어도 피고가 이 사건 출원공개일(2012. 3. 15.) 이전에 위와 같이 삽목의 형태로 재배한 드래퍼 등 보호품종의 삽수는 이 사건 출원공개 이전에 이미 뿌리를 내린 것으로 보이는 점(원고들 역시 2018. 2. 12.자 답변서에서 삽수를 트레이에 꽂은 후 2~3개월 간 온도와 습도를 관리해주면 뿌리가 내린다는 사실은 인정하고 있다), ④ 블루베리 묘목을 삽목한 후 삽수에서 뿌리가 내려지면 더 이상 좁은 트레이에서 재배하는 것이 곤란하므로 트레이보다 큰 화분에 옮겨져 재배되거나 판매되는 것으로 보이는바, 삽목을 통해 뿌리를 내린 묘목은 모수와는 구별되는 별개의 개체로서 독자적인 생장이 가능하다고 할 것이므로 뿌리가 내려진 묘목을 판매될 때까지 임시로 심어두는 행위를 종자의 증식으로 보기는 어려운 점 등에 비추어 보면, 피고가 이 사건 출원공개일 이전에 삽목의 방법으로 재배하여 뿌리가 내려진 드래퍼 등 보호품종의 묘목에 대해서는 증식이 완료하였다고 봄이 상당하므로, 앞서 본 법리 및 구 종자산업법 제13조의2 제3항 에 따라 이 사건 출원공개일 전에 실시된 종자인 드래퍼 등 보호품종의 묘목을 이용한 실시행위로서 이 사건 출원공개일 이후에 피고가 위와 같이 증식을 마친 드래퍼 등 보호품종의 묘목을 양도하거나 양도의 청약(양도를 위한 전시를 포함한다)을 한 행위에 대해서는 드래퍼 등 보호품종의 품종보호권의 효력이 미치지 않는다고 할 것이다.

D. Whether the Defendant’s propagation of the protected variety, such as drones, etc. after the date of publication of the instant application constitutes an infringement on the plant variety right, etc. (whether the Defendant is a non-exclusive licensee under Article 13-2(4) of the former Seed Industry Act)

1) A patent applicant has the exclusive right to work a patented invention commercially and industrially (Article 87(1) and Article 94 of the Patent Act). Before the establishment of the patent right is registered, the patent applicant may warn, in writing, the person who worked the invention claimed in the patent application after the publication of the patent has been made to the effect that the invention was already filed (Article 65(1) of the Patent Act). If the patent is registered upon the establishment of the patent right, the patent applicant can claim against the third party for compensation equivalent to the amount ordinarily payable for the working of the patent invention by being aware that the invention was laid open without a written warning or warning as above (Article 65(2) and (3) of the Patent Act). On the other hand, the applicant has the exclusive right to work the patent application for the patent filed as of the date of the publication of the patent application.

In addition, Article 13-2 (4) of the former Seed Industry Act provides that a person who runs or prepares a business of exploiting a protected plant variety in the Republic of Korea prior to the date of publication of the plant variety under paragraph (1) of the same Article shall have a non-exclusive license as to the plant variety right within the scope of the purpose of the business in which the plant variety is being exploited or prepared, and in such cases, a person who has the non-exclusive license shall pay a reasonable amount to the plant variety right holder. Thus, the term "preparation for business" under Article 13-2 (4) of the former Seed Industry Act means that a person who has not yet reached the stage of implementation of the plant variety, but has not yet reached the stage of implementation of the plant variety, and has an intention to immediately implement the plant variety and has expressed such intention to immediately

2) 이 사건에 관하여 보건대, 앞서 본 바와 같이 드래퍼 등 보호품종은 알려진 품종으로서 드래퍼 등 보호품종의 품종보호에 관하여는 식물신품종 보호법 부칙 제3조의2에 따라 구 종자산업법 제13조의2 가 적용된다고 할 것인바, 앞서 본 전제 사실과 을 제24, 26호증의 각 기재에 변론 전체의 취지를 종합하여 인정할 수 있는 다음과 같은 사실과 사정, 즉 ① 원고 미시간주립대학은 드래퍼 등 보호품종에 대하여 신규성의 예외를 규정한 구 종자산업법 제13조의2 제1항 에 따라 2012. 3. 15. 품종보호 출원공개를 하고 드래퍼 및 리버티에 대하여는 2015. 4. 8., 오로라에 대하여는 2016. 2. 1. 각 품종보호 등록을 마친 점, ② 피고는 이 사건 출원공개일 이전부터 블루베리 재배에 관심을 가지고 블루베리 관련 인터넷 카페를 운영하면서 2010. 6. 8. 및 2010. 11. 26. 2회에 걸쳐 일본에서 피고 명의로 블루베리 품종 중 하나인 후쿠베리 묘목 1,100주를 수입한 후 격리재배를 거쳐 식물방역법에 따른 격리재배검사에 합격한 후 이를 판매하기도 한 점, ③ 피고는 2012. 1. 7. 블루베리가 품종보호 대상작물로 지정되기 이전으로서 이 사건 출원공개일(2012. 3. 15.) 이전인 2011. 2. 17. 및 2011. 2. 25. 미국에서 드래퍼 등 보호품종 등의 블루베리 묘목을 피고의 아들 소외 2 또는 피고 명의로 구입한 후 중국을 거쳐 2011. 3. 2. 피고를 수입자로 하여 드래퍼 등 보호품종의 블루베리 묘목의 경우 삽수 형태로 들여왔고, 2011. 3. 4.부터 피고 운영의 이 사건 농원에서 격리재배를 하여 2011. 9. 5. 피고 명의로 식물방역법에 따른 격리재배검사에 합격하였으며, 2011. 9. 무렵부터 2012. 1. 무렵까지 사이에 위와 같이 격리재배검사에 합격한 드래퍼 등 보호품종의 묘목을 모수로 하여 그 모수에서 가지를 잘라내어 다시 삽목하는 방법으로 드래퍼 등 보호품종의 묘목을 재배한 점, ④ 피고가 미국에서 구입하여 국내로 들여온 드래퍼 등 보호품종의 삽수는 2011. 3. 4. 무렵부터 2011. 9. 5. 격리재배검사에 합격할 때까지 피고의 이 사건 농장에 있는 비닐하우스에서 배양토가 담긴 육묘 트레이에서 삽목의 형태로 재배되었고, 2011. 9. 5. 격리재배검사에 합격한 후 다시 격리재배검사에 합격한 드래퍼 등 보호품종의 묘목을 모수로 한 삽목 역시 같은 방법으로 진행된 점, ⑤ 비록 피고는 임차한 토지 외에 자신이 소유하고 있는 토지가 없어 구 종자산업법 등 관련 법령에서 규정하고 있는 일정한 시설을 갖추지 못하자, 자신과 사돈관계에 있고 인근에서 토지를 소유하고 있는 소외 1의 명의를 빌려 종자업 등록을 신청하여 2011. 12. 21. 종자업 등록을 마쳤고, 2012. 1. 2. 소외 1의 명의를 빌려 그 명의로 상호를 ○○○○으로 하여 묘목생산업에 관한 사업자등록을 마쳤으며, 2012. 1. 무렵 소외 7에게 드래퍼, 리버티 보호품종의 묘목을 일부 판매하기도 한 점 등에 비추어 보면, 피고는 이 사건 출원공개일 전에 이미 드래퍼 등 보호품종의 실시사업을 하고 있었다고 보이고, 설령 그렇지 않다고 하더라도 피고는 이 사건 출원공개일 전까지 드래퍼 등 보호품종의 실시사업을 위한 활동을 해왔고, 그와 같은 피고의 행위는 명백히 피고의 드래퍼 등 보호품종에 관한 사업의 실시를 위한 경제활동의 일환이라고 할 것이어서 피고가 드래퍼 등 보호품종에 관하여 사업을 즉시 실시할 의도를 가지고 있었다고 보아야 하며, 그와 같은 즉시 실시할 의도는 피고가 피고 명의로 미국에서 드래퍼 등 보호품종에 관한 묘목을 구입한 후 피고를 수입자로 하여 이를 국내에 들여온 다음 피고 명의로 격리재배검사에 합격하고, 격리재배검사에 합격한 드래퍼 등 보호품종의 묘목을 모수로 한 삽목을 실시하였을 뿐만 아니라, 비록 타인의 명의로 한 것이기는 하지만 종자업 등록과 묘목생산업에 관한 사업자등록을 마친 행위 등에 의하여 객관적으로 인식될 수 있는 정도로 표명되었다고 할 것이므로, 결국 피고는 이 사건 출원공개일 전에 드래퍼 등 보호품종의 실시사업을 준비하고 있었다고 봄이 상당하다.

In order to be recognized as a non-exclusive license pursuant to Article 13-2 (4) of the former Seed Industry Act, the plaintiffs should be a person who has run or prepared a business of exploiting the protected variety lawfully, as well as a non-exclusive license under Article 65 of the same Act. The defendant asserts that the defendant did not register a seed business before the date of publication of the application of the case, and the registration of a seed business under the name of non-party 1 who does not have a business relationship does not affect the defendant. Since the defendant sold the seedlings, etc. of the protected variety such as Drpers, etc. from April 2012 after the date of publication of the case without resolving the above unlawful state, the defendant cannot be deemed as a person who has lawfully engaged in the business of exploiting the protected variety, and since it is difficult to see that the defendant had an intention to start the business or had an objective expression of intention, it cannot be deemed as a person who has prepared the business of practicing the protected variety. Thus, the defendant cannot be seen as a person who has prepared the business of non-exclusive licensee.

The facts that the Defendant was convicted of violating the Seed Industry Act due to the Defendant’s act of importing and propagating the protected plant variety, such as Drpers, etc. by not later than the day before the date of registration of seed business in Nonparty 1 without registering seed business with the competent authority, and the act of importing, producing, and selling the protected plant variety, such as Drpers, etc. by not later than the day before the date of publication of the application of the case without reporting the Minister of Agriculture, Food, and Rural Affairs.

However, evidence Nos. 49, Eul evidence Nos. 17, 21, 22 and 24 can be acknowledged by comprehensively taking into account the following facts and circumstances, i.e., the former Seed Industry Act provides for a penal provision for the operation of a seed business without registration and the importation of a variety without reporting, etc., under Article 13-2 (4) of the former Seed Industry Act; unless the requirements for registration of a seed business under Article 13-2 (1) of the former Seed Industry Act are prescribed as the requirements for non-exclusive license for a person who runs or prepares for such business in the Republic of Korea before the date of publication of the variety which was protected under Article 13-2 (1) of the same Act, the former Seed Industry Act provides for the restriction on the acquisition of non-exclusive license for a seed business under Article 13-2 (4) of the former Seed Industry Act, for reasons of non-exclusive license for a violation of the former Seed Industry Act.

3) Thus, the defendant constitutes a person who has conducted, or has prepared, the exploitation business of a protected variety, such as drones, in the Republic of Korea before the date of publication of the case regarding the protected variety, such as drones, and thus has a non-exclusive license for the protected variety, such as drones, pursuant to Article 13-2 (4) of the former Seed Industry Act in relation to the propagation and sale of the protected variety, such as drones, as the purpose of business for exploitation or preparation. Thus, even if the defendant increased and sold the seedlings of the protected variety, such as drones, after the date of publication of the case, it cannot be deemed that the plaintiffs' plant variety right

E. Sub-decision

In full view of the contents examined above, the Defendant’s act of propagating the seedlings of the protected plant variety, such as drones, or displaying them for sale or sale after the date of publication of the instant plant variety does not affect the plant variety right, such as drones, and even if the Defendant sold them by propagating the seedlings of the protected plant variety, such as drones, after the date of publication of the instant plant variety, it cannot be deemed that the Defendant’s non-exclusive license for the protected plant variety, such as drones, was recognized and infringed on the Plaintiffs’ plant variety right, etc.

Therefore, the defendant's claim for the prohibition of infringement, etc. based on the premise that the defendant infringed the plaintiffs' plant variety right, etc. is without merit.

4. Judgment as to the primary claim against the plaintiffs' monetary payment

【Plaintiff’s argument】

The plaintiffs asserted that the defendant infringed the provisional protection rights and the plant variety rights and the exclusive license of the plaintiff Plubbeg of the protected plant variety, such as the plaintiff U.S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S. S

[Judgment]

However, as seen above, the Defendant’s propagation of the seedlings of the protected plant variety, such as drones, or display, etc. for sale or sale after the date of publication of the instant plant variety after the date of publication of the publication of the instant plant variety does not have the effect of plant variety rights, such as drones, etc., and even if the Defendant increased and sold the seedlings of the protected plant variety, such as drones, after the date of publication of the instant plant variety, it cannot be deemed that the Plaintiffs’ plant variety rights, etc. were infringed unless the Defendant’s non-exclusive license for the protected plant variety such as

Therefore, the defendant's primary claim for the payment of the plaintiffs' primary money under the premise that the defendant infringed the plaintiffs' plant variety right, etc. is without merit.

5. Judgment on the conjunctive claim for the plaintiffs' monetary payment

A. Part on the claim for reasonable price payment based on Article 13-2(4) of the former Seed Industry Act

【Plaintiff’s argument】

The gist of the plaintiffs' arguments is as follows.

1) As a variety protection right holder or an exclusive licensee of a protected variety, such as Drpers, from March 15, 2012, the date of the publication of the instant plant variety, until October 1, 2015, which is the day before the date of the establishment registration of the exclusive license (as for Laos, February 2, 2016), the Plaintiff’s non-exclusive licensee of the protected plant variety, such as Plaintiff Snbs, is entitled to seek a reasonable payment for the exploitation of the protected plant variety as prescribed in Article 13-2(4) of the former Seed Industry Act, from October 2, 2015 (as for Laos, February 3, 2016) to December 31, 2016, when the exclusive license of the protected plant variety, such as Plaintiff Snbs, is registered.

2) Pursuant to Article 13-2(4) of the former Seed Industry Act, the Defendant’s reasonable price to be paid to the Plaintiffs who are the variety protection right holder or exclusive licensee is ① The Defendant’s profit amount of USD 5,469,000 calculated by multiplying the Defendant’s production cost ($ 936,000 per unit quantity of seeds) by the amount obtained by deducting the Defendant’s production cost ($ 936,000 per unit of seeds) from USD 9,469,048,000 ($ 936,000 per unit of seeds x 5,000 won x 5,005,00 won per unit of seeds x 205,000 won paid to the Plaintiff’s non-exclusive license for the protected variety at least KRW 936,5,000 per unit of seeds) from around 20 to 2016.

3) Therefore, as a partial claim against the Defendant, the Plaintiff’s non-permanent university (hereinafter the Plaintiff’s non-permanent university) claimed KRW 200,000,000 (i.e., the equivalent price of KRW 100,000,000 in relation to the plant variety + the considerable price of KRW 50,000,000 in relation to the plant variety + the payment of the equivalent price of KRW 50,000 in relation to the plant variety + the delayed payment of KRW 100,000 in relation to the plant variety; and (ii) the payment of the damages for delay (i.e., the Plaintiff’s mobile plant variety + the equivalent price of KRW 50,00,000 in relation to the plant variety + the equivalent price of KRW 25,00,000 in addition to the amount of KRW 25,00 in relation to the plant variety + the delay payment amount of KRW 10 in each week).

[Judgment]

1) Determination on the claim for reasonable price payment at the Plaintiff’s non-permanent university

A) Relevant legal principles

As seen earlier, Article 13-2 of the former Seed Industry Act strongly protects the right of a variety protection right holder by allowing the exploitation of a known variety to be protected if it satisfies certain requirements (Paragraph 1) notwithstanding the requirements for newness, the effect of the variety protection right shall not extend to the exploitation of the protected variety before the date of publication in order to protect the rights and trust of a person who is conducting or preparing the exploitation business of the protected variety before the date of publication (Paragraph 3). Since such a non-exclusive license is granted to a person who implements or prepares such business (Paragraph 4), the "reasonable price" to be paid as consideration for such non-exclusive license shall be determined reasonably by comprehensively taking into account the legislative purport of the above, taking into account the equity and transaction norms between the variety protection right holder and the legal non-exclusive licensee. In addition, a reasonable amount and method of payment shall be determined by the agreement between the parties, but in such case, the court shall be determined at the request of the parties, if the non-exclusive licensee does not enter into an agreement, taking into account the sale quantity of the protected variety and the non-exclusive license into account.

(B) a detailed calculation of a reasonable price;

(1) Where the Plaintiff’s non-exclusive license regarding the protected plant variety such as Drpers, etc. is granted for the Plaintiff’s non-exclusive license;

(A) Facts of recognition

The following facts can be acknowledged in light of the above-mentioned facts, Gap's evidence Nos. 64, 65, 67, 73, 74, and Eul's evidence Nos. 32.

① 홀티 측은 2011. 12. 1. 굿맨파트너즈 측과 사이에 홀티 측이 굿맨파트너즈 측에게 이 사건 각 보호품종에 관한 국내에서의 독점적인 재실시권을 부여하는 내용의 이 사건 라이선스계약을 체결하면서 굿맨파트너즈 측이 그 로열티로서 홀티 측에게, ㉠ 선불금으로 미화 29,000달러, ㉡ 묘목을 판매하는 경우 등과 관련하여 묘목당 미화 0.22달러, ㉢ 2014년부터 2022년까지 매년 최저 로열티로 미화 2,000달러, ㉣ 블루베리 품종 재배에 관한 로열티로서, 블루베리 품종의 열매 판매 총 매상의 2%에 해당하는 지속적 로열티 또는 블루베리 품종의 열매 생산이 가능한 지역의 연간 헥타아르당 미화 500달러에 해당하는 지속적 로열티 또는 기간별로 차이가 있으나 2011년부터 2019년까지 묘목 한 주당 미화 0.8달러에 해당하는 선불 로열티 중 어느 하나를 선택하여 지급하기로 약정하였다.

② On November 5, 2011, the research foundation of Choi University entered into a contract with the research foundation of Choi University to grant exclusive license to Belgium varieties in the Republic of Korea on the part of Choi University, which was developed by the professors non-party 8 of Choi University, on November 5, 201. The research foundation of Choi University agreed to pay 2,500 U.S. dollars in advance to the research foundation of Choi University within 15 days after the date of conclusion or date of entry into force of the above contract and to pay 0.5 U.S. dollars in advance each year, which was sold directly or through a third party by the research foundation of Choi University or through a third party, and the amount equivalent to 10.30 U.S. dollars in advance from 201.

③ From around October 2015 to September 2017, Plaintiff Sbluen sold 2 to 12,000 won per share of a protected plant variety, including Drblus, for three years from September 2017, and after September 2017, Plaintiff Sblus sold for 7,000 won per share of the protected plant variety. In addition, Nonparty 6, who operated a business related to Blulus seedlings from around 2015 to “(trade name 2 omitted)”, supplied Blus seedlings of each of the instant protected plant variety at KRW 10,00 per share, and around 12, 2016 to Nonparty 6, concluded an agency and non-exclusive license agreement related to each of the instant protected plant variety with Nonparty 6 on April 12, 2016, Plaintiff Plulusian agreed to supply Blus tree at KRW 70,00 per share except for each kind of tree supplied to Nonparty 6.

④ Meanwhile, there was a dispute between the planting and planting parties with respect to the exclusive license infringement of the protected plant variety, such as Plaintiff Sblue’s Dr. On March 30, 2018, Plaintiff Sblue purchased 2,00 shares from the Defendant and the planting Nonparty 9 paid the amount calculated by Nonparty 9 per share as KRW 9,000 per share for damages for unauthorized exploitation of the protected plant variety, and for future exploitation fees, the Plaintiff Sblue waived waived waived waived waived the remainder of the damages for the past infringement and was no longer liable for civil and criminal investigation, and on April 2018, Nonparty 1 agreed with Nonparty 60, including Drlue, supplied 600 shares, including the protected plant variety, from the Defendant.

(B) Determination

(4) The case holding that, in light of the following facts and the overall purport of pleading, the Plaintiff’s exclusive license holder of the protected plant variety is not a party to the contract, such as the Plaintiff’s non-exclusive license holder of the protected plant variety, but the Plaintiff’s exclusive license holder of the protected plant variety is not a party to the contract. However, on December 1, 2011, the Plaintiff’s exclusive license holder of each of the protected plant variety in the area, such as the Republic of Korea on the seedlings of each of the protected plant variety, and the Plaintiff’s exclusive license holder’s non-exclusive license holder’s non-exclusive license holder’s non-exclusive license holder’s non-exclusive license holder’s non-exclusive license holder’s non-exclusive license holder’s non-exclusive license holder’s non-exclusive license holder’s non-exclusive license holder’s non-exclusive license holder’s non-exclusive license holder’s non-exclusive license holder’s non-exclusive license holder’s non-exclusive license holder’s non-exclusive license holder’s non-exclusive license holder’s non-exclusive license holder’s non-exclusive license for each of the protected plant variety.

(2) Quantity of the protected variety, such as Drupers, after the date of publication of the instant case, by the Defendant

(A) Facts of recognition

The following facts may be acknowledged in light of the aforementioned facts and the overall purport of the arguments and videos stated in Gap's evidence Nos. 3, 4, 19, 22, 38, 39, 53, 55, 56, 84, Eul's evidence Nos. 8, 11, 18, 28, 30, 33, and 33.

(1) The circumstances, etc. in which the defendant has reproduced a protected variety, such as the drper.

On February 17, 2011 and February 25, 2011, the Defendant purchased a total of 170 weeks, a total of 145 weeks, and a total of 260 shares for Oralin seedlings, and a total of 260 shares for Oralin seedlings from February 15, 2011 to February 22, 201, as well as 660 shares in the United States of America, another blug plant variety from February 15, 201, and between February 25, 201 and February 22, 2011.

(B) The Defendant, via China, carried the seedlings purchased as above, into a tree with roots in Korea on March 2, 201. Before March 4, 2011, the instant plant variety is isolated from the Southern Isolation Management Office affiliated with the National Plant Quarantine Service (leleg, tower years, sing) and passed an isolation inspection under the Plant Protection Act on August 5, 201, and passed an isolation inspection under the Plant Protection Act on August 5, 201, and then, the instant plant variety (e.g., f., g., g., g., g., g., g., g., g., g., g., g. g., g. g. g. g., g. g. g., g. g. g. g. g., g. g. g. g. g. g. g. g., g. g. g. g. g. g., g. g. g. g. g., g. g. g. g. g. g. g. g. g. g. g. g.

B. As above, the Defendant moved the seedlings of the protected plant variety such as the dracker, etc., which have been isolated and completed an inspection of cultivation, to the 6th greenhouse installed in the farm site of this case, and continued to grow the seedlings by inserting them again around September 201 in the manner of inserting them into the 40 tamps (hereinafter referred to as the “second propagation seedlings”), the 5th greenhouse installed in the farm site of this case, including the 1st greenhouse and 5th greenhouse, and the 93,680 new seedlings, including the 2nd seeds and seedlings, and the 5th greenhouse of the said 20th greenhouse, the 205th greenhouse of the instant farm site of this case, which was built in the 5th greenhouse of the instant farm site of this case, were deducted from the 5th greenhouse of the said 201, and the 5th greenhouse of the said 205th seed and seedling, including the remaining 80th greenhouse seedlings of the instant variety, and the 5th greenhouse of this case.281.

On the other hand, the Defendant purchased 200 Dulu seedlings, a variety of Blulue plant on December 12, 201 in the United States, 50 Malux seedlings, 100 Malux 100 on December 14, 201, and 100 Malux 100 on December 14, 201. The Defendant purchased rablux 200 Malux seedlings, which was growing from September 2, 201, after isolation growing, and which was growing after December 201.

After the end, the Defendant, as indicated in the attached Table 2, cultivated blue seedlings using 8,918 square meters in total as of the year 2015, by continuously securing each old tree tree nursery with a size of 2,922 square meters in the vicinity of the instant vinyl, 2014, 2,988 square meters in 2015, and 3,008 square meters in 2015.

㉳ 국립종자원 품종보호과 소속 특별사법경찰관이 2015. 12. 11. 관련 형사사건의 수사과정에서 작성한 수사보고서(현장조사 및 사진촬영 첨부, 갑 제53호증의 134)에는 “2015. 12. 10. 피고의 이 사건 농장을 방문하여 확인한 결과, 피고가 이 사건 농장에 6동의 비닐하우스를 설치하여 블루베리 묘목을 삽목증식 또는 재배하고 있고, 3개 구역은 노지에서 블루베리 묘목을 재배하고 있는데, 이 사건 농장의 진입부 노지 2개 구역에 드래퍼, 리버티, 오로라를 포함한 블루베리 품종의 2~3년생 묘목과 드래퍼, 리버티를 포함한 블루베리 품종의 어미묘가 품종 당 20~100여 주 가량 식재되어 있고, 좌측에서 첫 번째 비닐하우스에는 드래퍼 등 보호품종 이외의 다른 블루베리 품종의 어미묘 및 5.5인치 포트묘와 함께 드래퍼를 포함한 3종의 블루베리 품종이 삽목 증식 중에 있었으며, 세 번째 비닐하우스에는 드래퍼 등 보호품종 이외의 다른 블루베리 품종의 5.5인치 포트묘와 함께 드래퍼, 리버티를 포함한 3종의 블루베리 품종이 삽목 증식 중에 있었고, 네 번째 비닐하우스에는 드래퍼를 포함한 3종의 블루베리 품종의 5.5인치 포트묘와 함께 드래퍼 등 보호품종 이외의 다른 3종의 블루베리 품종이 삽목 증식 중에 있었으며, 다섯 번째 및 여섯 번째 비닐하우스 역시 드래퍼 등 보호품종 이외의 다른 블루베리 품종이 삽목 증식 중에 있었고, 비닐하우스 뒤편 노지 1개 구역에는 드래퍼를 포함한 6개 품종의 2~3년생 묘목이 있었다.”는 취지의 내용이 기재되어 있다.

㉴ 아래 사진과 같이, 2015. 12. 무렵 이 사건 농원에 설치된 비닐하우스 1개 동에서 드래퍼 품종의 묘목이 40구 트레이에 삽목되어 증식되고 있었고, 2017. 11. 15. 무렵 화분에 식재된 드래퍼 품종의 묘목과 리버티 품종의 묘목이 이 사건 농원의 노지에 배치되어 있었다.

A person shall be appointed.

(2) Circumstances, such as advertising sales of seedlings of a protected plant variety, including the defendant's drones, etc.

On January 14, 2012, the Defendant posted a letter to the effect that “new varieties in domestic possession” in the column of the official announcement of the Internet Blogs (blogs omitted; hereinafter “the instant Blogs”) operated by the Defendant has the seedlings of the instant Blogs as indicated in the table as follows, and that currently sold varieties are scheduled to be shipped to four months as “drpers, Llogs, Rogs, Bags, Llogs, Llogs, Llosts, and Mags,” and that the instant Blogs sold new seeds to the instant Blogs on July 30, 2012.

Varieties that are included in the main sentence of this Article for the development of the Plue-flue-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-fluor-flu

(b) In the investigation report of June 3, 2016, prepared in the course of investigation of the criminal case related to the subordinate case, the sales details related to the protected variety, such as Drpers, are indicated as follows.

Non-party 11 Dr.m. 1, 200 Sc. 7 Sc. 1, 2012, Non-party 2, Non-party 3, Non-party 2, 00 Sc. 1,00 Sc. 5, Non-party 2,00 Sc. 2,00 Sc. 5, Non-party 2,00 Sc. 2,00 Sc. 6,00 Sc. 2,00 Sc. 7,00 on April 25, 2012 (the quantity of seedlings for each kind cannot be known) for non-party 11, Sc. 3, 205, Non-party 2, 300 Sc. 1, 205, 30 Sc. 2,000 Sc. 3,05,00 Sc. 2,000

㉰ 관련 형사사건의 수사과정에서 작성된 2012. 7. 11.자 수사보고서(참고인 전화 탐문, 갑 제53호증의 123)에는 피고로부터, 소외 19는 “레벨, 오로라, 드래퍼, 카멜리아를 주당 7,000원에 샀다”, 소외 20은 “신품종을 주당 5,000원에 3종류를 샀다.”, 소외 13은 “신품종 5종류를 주당 7,000원에 구매하였다.”, 소외 21은 “몇 명이 어울려서 500주를 주당 7,000원에 팜플렛에 있는 5종류를 샀다.”, 소외 10은 “인터넷 상에서 신품종을 판다는 광고를 보고 주당 7,000원에 800주를 구입했다. 차후 발생할 로얄티 문제는 피고가 책임지기로 했다.”라는 탐문내용이 기재되어 있다.

On September 26, 2012, the Defendant posted a letter on the instant Blog, stating that “The 1,000 Slogs seedlings have been sold so far, but the Defendant decided to sell them for more than 100 weeks at the customer’s request,” and on April 17, 2013, the Defendant posted the instant Blogs that “The 2 years and three years have elapsed.”

The tax invoice (No. 53 No. 45 of the evidence No. 53) prepared by the Defendant after selling the seedlings of the Blue plant variety to Nonparty 22 on February 28, 2014 is written by drper in two years.

㉳ 울산에서 (상호 3 생략) 농원을 운영하는 소외 17은 2014. 11. 4. 원고 측에 “지인이 농장 조성을 의뢰하셨기에 소문 끝에 피고에게 5개 품종인 카멜리아, 드래퍼, 레벨, 오로라, 리버티를 구매해서 일천 평 정도를 조성해준 적이 있다.”라는 취지의 내용이 담긴 이메일을 보냈다.

㉴ 피고는 2015. 4. 26. 이 사건 블로그에 드래퍼 등 보호품종을 포함한 20개 품종의 블루베리 묘목으로서 2년생의 묘목(국내생산)을 공급한다는 취지의 글을 게시하였고, 2015. 6. 29. ‘▽▽▽ ▽▽▽▽ ▽▽’라는 인터넷 카페(인터넷주소 2 생략) 및 ‘◎◎◎◎◎◎◎◎’이라는 인터넷 카페(인터넷주소 3 생략)에도 같은 내용의 글이 게시되었다.

㉵ 2015. 5. 1. 위 ▽▽▽ ▽▽▽▽ ▽▽라는 인터넷 카페에 피고로부터 오로라 50주를 구입하였다는 내용의 글이 게시되었다.

㉶ 피고는 2016. 7. 7. 소외 23에게 블루베리 묘목에 관한 견적서(갑 제37호증의 3)를 작성하여 보냈는데, 그 견적서에는 드래퍼가 2년생으로 기재되어 있다.

㉷ 조지아대학교 연구재단이 피고 등을 상대로 제기한 임시보호권등 침해금지가처분사건( 부산지방법원 2014카합10301호 )에서 피고가 2014. 10. 무렵 제출한 준비서면(갑 제78호증)에는 “블루베리 품종의 경우에는 묘목 삽목 후 약 1년 반에서 3년 이내에 묘목을 판매하여야 하며, 이후에는 묘목의 상품성이 없게 되고, 유지에 막대한 노력 비용이 발생한다.”라는 취지의 내용과 함께 “가처분결정 시 위 가처분사건 관련 품종들(레벨, 수지블루, 카멜리아)을 판매할 수 없게 되고, 그 손해는 묘목 한 주당 약 7,000원 상당으로 판매하고 있으므로 묘목 20,000주만 되어도 손실이 1억 4,000만 원이 넘게 될 것이다.”라는 취지의 내용이 기재되어 있다.

㉸ 피고는 2016. 4. 22. 관련 형사사건의 수사절차에서 “피고가 증식해서 판매한 품종들을 키워본 수요자들의 반응이 좋지 않아 드래퍼를 제외하고 거의 폐기처분한 것이 많다. 드래퍼를 제외한 다른 품종들은 블루베리 시장에서 판매도 잘 되지 않고 있는 상태이다.”라는 취지로 진술하였다.

③ Sales, etc. related to the Defendant’s sale of Blue seedlings

On July 11, 2012, the investigation report prepared in the course of the investigation of the relevant criminal case (hereinafter referred to as “Defendant’s account”) states that “The suspicion of transfer to the purchase price of blus seeds and seedlings among the linked accounts is examined about 24 accounts, after verifying the account owner’s personal information, and the amount deposited into the Defendant’s account is KRW 101,670,000 in total.”

(b) On December 2, 2015, the Defendant stated that the annual sales amount of the instant farmer was KRW 70 million or KRW 100 million in the investigation process of the relevant criminal case, and according to the Defendant’s report on the Defendant’s business performance in the investigation process of the relevant criminal case on April 19, 2016, the details of the Defendant’s report on business performance related to the instant farmer are KRW 78,00,000 in the case of 2012, and KRW 249,784,00 in the case of 2015 (However, there is no details of the report on business performance in the case of 2013 and 2014).

On April 21, 2017, Nonparty 11 was present as a witness at the first instance court of the relevant criminal case, and stated that, around the mid-term end of March 2012, Nonparty 1, a down payment of KRW 100,000,000,000,000,000,000,000 won, was paid in cash from the Defendant.

(4) The current status, etc. of cultivation of Blue varieties.

The “Research Report on the Selection and Development of Quality Varieties of Blulus, Poppy Poppy, and Soppy,” which was conducted by the National Institute of Arts specialized in the Republic of Korea from 2009 to 2011 and submitted to the Rural Development Administration on February 2, 2012, includes the following purport: “The Research Report on the Development of the Production and Farming System of Slus and Quality Varieties, which is mainly cultivated in the Republic of Korea, is the North-west Blus and half-brush, and the brush Blus, which may be limited to the South-west area and Jeju-do, in order to avoid the damage of the East Sea.”

(C) The term “the research report on the cultivation of Blue Blusian safety” submitted by the National Institute of Special Cr. Cr. Cr. to the Rural Development Administration on March 6, 2015 includes the following: “The instant research report: (a) there is only a variety, such as a strong Brlus, in an area where plant varieties are habitually generated at the latest in relation to each region’s cultivation period; (b) on the other hand, in an area where plant varieties do not occur at the latest, a variety of brlus are selected from a variety, such as the strong Brlus with the strongest brus and so on to the strong brlusity of the plant variety, etc., along with the instant plant variety.”

(B) Determination

Examining the aforementioned facts in light of the following facts and circumstances, which can be recognized by comprehensively taking account of the respective descriptions and arguments in the Evidence Nos. 46, 53, and Nos. 8 and 28 as well as the entire arguments, the Defendant has no evidence to acknowledge that the Plaintiff offered a total of 70,000 shares (10,000 shares from March 15, 2012 to October 1, 2015) from March 15, 2012, which was the date of the publication of a protected plant variety, such as drones, to October 1, 2015, total of 35,00 shares (5,00 shares x 7 times from March 15, 2012 to October 1, 2015). The evidence that the Plaintiff submitted to the Plaintiff for the propagation of the protected plant variety from March 15, 201 to October 1, 2015 is insufficient to deem otherwise.

① First of all, the Defendant appears to have placed 40 bitra in each greenhouse (9m x 94m) installed in the farm of this case, which is 1 year, 325 m in total where 40 bitras are placed in the remaining space (3m in front and rear 1.5m m) excluding the space in which it is impossible to display seedlings in a vinyl house (1.5m 91m m in front and rear 91m) with the vertical length of 0.28m above, 40 bitras in each 40 m in each 20 m in each 5 m in each 20 m in each 5 m in each 20 m in each 40 m in each 5 m in each 40 m in each 5 m in each 20 m in each 5 m in each 5 m in each 5 m in each 5 m in each 5 m in each 5 m in each 5 m in each m in each m in each 2.

② Meanwhile, prior to the date of the publication of the instant case, the Defendant had already reproduced seedlings of the protected variety, such as drpers, and other dracker varieties in the first and fifth vinyls, which were installed in the Agricultural Center of this case, before the date of publication of the instant case, and the seedlings of the protected variety, such as drackers, which were already reproduced before the date of publication of the instant case, are deemed to have been sold to ordinary consumers after the date

③ 피고는 드래퍼 등 보호품종과 관련하여 이 사건 출원공개일 이후 추가로 증식한 것은 드래퍼의 경우 2015년에 5,000주, 2016년 5,000주, 리버티의 경우 2016년에 2,000주에 불과하다고 주장하나, ㉠ 피고는 블루베리 열매를 재배하여 판매하는 것이 아니라 블루베리 묘목을 증식하여 판매하는 것을 주된 사업으로 하면서 주로 2~3년 주13) 생 묘목을 판매하였던 것으로 보이고, 생육기간이 2~3년을 초과한 묘목은 판매가치가 떨어져 폐기하기도 하였던 것으로 보이는 점, ㉡ 블루베리 묘목의 경우 다른 공산품과 달리 묘목 증식 시기가 제한적이고 판매에 적합할 정도의 묘목으로 성장하기까지는 어느 정도의 식재기간도 필요하여 소비자의 수요에 맞추어 바로 묘목을 증식하여 판매할 수 있는 것이 아니므로, 블루베리 묘목 판매업자인 피고로서는 장래 수요에 대비하여 정기적으로 블루베리 묘목을 증식할 필요가 있었을 것으로 보이는 점, ㉢ 더욱이 피고는 부가가치세 면세사업자로서 드래퍼 등 보호품종을 포함한 블루베리 묘목 판매를 통하여 얻은 전체 매출액 내지 판매자료 등을 제출하지 않고 있고, 피고의 매출액 중 상당수는 현금 결제를 통해 이루어진 것으로 보여 그 매출규모를 구체적으로 확인하기 어렵다고 하더라도, 피고가 드래퍼 등 보호품종을 포함한 블루베리 묘목을 판매하기 시작한 시점인 2012. 7. 무렵 블루베리 묘목 구입대금으로 피고 측 계좌에 입금된 것으로 보이는 금액이 약 1억 원이고, 피고가 과세관청에 신고한 2015년도 사업실적도 약 2억 4,000만 원에 이르는 사정 등에 비추어 피고가 드래퍼 등 보호품종을 포함한 블루베리 묘목 판매와 관련한 매출 규모가 상당한 것으로 보이고, 이에 따라 피고로서는 이 사건 출원공개일 전에 증식된 드래퍼 등 보호품종의 묘목이 일부 판매되는 등으로 그 재고가 줄어 적절한 재고량을 유지할 필요도 있었을 것으로 보이는 점, ㉣ 실제로 피고는 이 사건 출원공개일 이후인 2012. 7. 30. 이 사건 블로그에 지금도 수 만주를 증식하고 있다는 취지의 글을 게시하였을 뿐만 아니라 이후 2015년에 이르기까지 수회에 걸쳐 이 사건 블로그나 관련 인터넷 카페에 드래퍼 등 보호품종을 포함한 다양한 품종의 2~3년생 블루베리 묘목을 공급한다는 취지의 글을 게시하였고, 2015년 및 2017년 무렵 이 사건 농원의 비닐하우스나 노지에 드래퍼, 리버티 품종의 블루베리 묘목이 삽목되어 증식되거나 화분에 식재되어 배치되어 있는 모습이 촬영되기도 한 점 등에 비추어 보면, 피고는 이 사건 출원공개일 이후 피고가 자인하는 증식 수량을 초과하여 드래퍼 등 보호품종을 포함한 블루베리 묘목을 정기적으로 증식하였을 것으로 보인다.

다만 ㉠ 피고가 개인사업자로서 이 사건 농원을 상근직원 없이 부인 등 가족과 같이 운영하고 있는 것으로 보이는 점, ㉡ 이 사건 농원은 상대적으로 기온이 온화한 남부지역(경남 고성군 ◁◁면 ▷▷리)에 소재하고 있어 그 소재지를 기준으로 보더라도 북부하이부쉬 품종에 속하는 드래퍼 등 보호품종 뿐만 아니라 남부하이부쉬, 래빗아이 품종에 속하는 블루베리 품종의 재배가 가능하고, 실제로도 피고는 드래퍼 등 보호품종을 포함하여 20여 종의 다양한 블루베리 품종을 증식하여 판매하였던 점, ㉢ 피고가 블루베리 묘목을 증식하여 재배하는 이 사건 농원의 비닐하우스 및 노지가 한정되어 있을 뿐만 아니라, 피고가 이 사건 블로그에 판매하는 것으로 광고한 블루베리 묘목은 주로 2~3년생이어서 한번 증식된 블루베리 묘목은 증식 이후에도 판매가 될 때까지 이 사건 농원의 비닐하우스나 노지의 일정 부분을 차지하고 있어 추가로 블루베리 묘목을 증식하는 데 일정한 제한이 있었을 것으로 보이는 점, ㉣ 더욱이 앞서 본 바와 같이 피고는 이 사건 출원공개일 전에 증식한 드래퍼 등 보호품종의 묘목을 상당 부분 확보하고 있었던 점 등에 비추어 보면, 피고가 이 사건 출원공개일 이후에도 원고의 주장과 같은 정도로 드래퍼 등 보호품종의 묘목을 증식하였다고 단정하기도 어렵다.

④ 앞서 본 사정과 아울러, ㉠ 피고는 2012. 7. 30. 이 사건 블로그에 “피고는 묘목에 대한 확실성이 있어 지금도 수 만주를 증식하고 있다.”는 취지의 글을 게시한 점, ㉡ 드래퍼의 경우, 피고가 2012년 이후에도 2015년에 이르기까지 수회에 걸쳐 이 사건 블로그나 관련 인터넷 카페에 드래퍼를 포함한 다양한 품종의 2~3년생 블루베리 묘목을 공급한다는 취지의 글을 게시하여 그 묘목이 판매되었고, 2015. 12. 무렵 이 사건 농원에 설치된 비닐하우스에서 드래퍼 품종의 묘목이 삽목 증식되거나 이 사건 농원의 노지에서 드래퍼 품종의 2~3년생 묘목이 삽목 증식되어 있었으며, 2017. 11. 15. 드래퍼와 리버티 품종의 묘목이 화분에 식재된 채로 이 사건 농원의 노지에 배치되어 있었고, 피고는 2016. 4. 22. 관련 형사사건의 수사절차에서 수요자들의 반응이 좋지 않아 드래퍼 품종을 제외하고 폐기처분한 것이 많고 드래퍼를 제외한 다른 품종의 블루베리 품종은 시장에서 판매도 잘 되지 않고 있는 상태라고 진술하였으며, 피고 스스로도 2015년 및 2016년에 드래퍼 품종의 묘목을 각 5,000주씩 증식하였다고 자인하고 있는 점, ㉢ 리버티 품종의 경우, 피고가 2012년 이후에도 2015년에 이르기까지 수회에 걸쳐 이 사건 블로그나 관련 인터넷 카페에 리버티 품종을 포함한 다양한 품종의 2~3년생 블루베리 묘목을 공급한다는 취지의 글을 게시하여 그 묘목이 판매되었고, 2015. 12. 10. 이 사건 농원에 설치된 비닐하우스에서 리버티 품종이 삽목 증식되거나 이 사건 농원의 노지에서 리버티 품종의 2~3년생 묘목이 삽목 증식되고 있었으며, 2017. 11. 15. 리버티 품종의 묘목이 화분에 식재된 채로 이 사건 농원의 노지에 배치되어 있었고, 피고 스스로도 2016년에 리버티 품종을 2,000주 증식하였다고 자인하고 있는 점, ㉣ 오로라 품종의 경우, 피고가 2012년 이후에도 2015년에 이르기까지 수회에 걸쳐 이 사건 블로그나 관련 인터넷 카페에 리버티 품종을 포함한 다양한 품종의 2~3년생 블루베리 묘목을 공급한다는 취지의 글을 게시하여 그 묘목이 판매되었고, 2015. 12. 10. 이 사건 농원의 노지에서 오로라 품종의 2~3년생 묘목이 식재되어 있었으나, 그 이후 오로라 품종이 추가로 증식되었음을 알 수 있는 객관적인 자료가 부족한 점, ㉤ 앞서 본 바와 같이 블루베리 묘목에 대한 삽목 작업은 통상적으로 2~4월에 이루어지는 숙지삽 및 6~8월에 이루어지는 녹지삽을 포함하여 1년에 2회에 걸쳐 실시되는 점(다만, 2012년 전반기의 경우 피고는 2011. 12. 무렵부터 2012. 1. 무렵까지 사이에 이미 증식을 마쳤다) 등 피고가 이 사건 출원공개일 이후 드래퍼 등 보호품종의 품종별로 해당 품종을 증식한 기간과 해당 품종의 묘목 판매와 관련한 홍보 내역, 드래퍼 등 보호품종에 대한 수요자들의 선호도, 피고가 이 사건 블로그에서 스스로 밝힌 드래퍼 등 보호품종을 포함한 블루베리 묘목의 증식 규모 및 피고가 스스로 자인하는 드래퍼, 리버피 품종의 증식 수량, 블루베리 묘목의 통상적인 연간 삽목 작업 가능 횟수 등을 종합하면, 피고는 드래퍼 품종의 경우 이 사건 출원공개일 이후부터 2016. 12. 31.까지 매 증식 시기마다 10,000주씩 총 9회[1회(2012년) + 8회(2013년부터 2016년까지 매년 각 2회)], 리버티 품종의 경우 이 사건 출원공개일 이후부터 2016. 12. 31.까지 매 증식 시기마다 5,000주씩 총 9회[1회(2012년) + 8회(2013년부터 2016년까지 매년 각 2회)] 증식을 하였고, 오로라 품종의 경우 이 사건 출원공개일 이후부터 2014년까지만 매 증식 시기마다 500주씩 총 5회[[1회(2012년) + 4회(2013년부터 2014년까지 매년 각 2회)] 증식하였던 것으로 봄이 상당하다.

C) Reorganization

In full view of the contents examined above, during the period from March 15, 2012 to the day before the exclusive license of a protected plant variety is granted (in the case of draga and drives plant variety, respectively, on October 1, 2015, and in the case of drives plant variety, on February 2, 2016) from March 15, 2012, the date following the publication date of the application of the instant plant variety, the Defendant, a non-exclusive licensee of the protected plant variety, such as drives, shall pay a reasonable amount of 107,50,000 won in total to the Plaintiff who is the holder of the plant variety protection right in relation to the exploitation of the plant variety within the scope of the purpose of the plant variety (=70,000 won in total + 10,000 won in the case of drives plant variety x 1,000 won in the case of drives plant variety x 0500 weeks in total (50 weeks)

2) Determination on Plaintiff Blue’s claim for the payment of equivalent price (preliminary claim)

Article 61 of the New Plant Variety Protection Act provides that a variety protection right holder may grant an exclusive license on the variety protection right to another person (Paragraph 1), and that an exclusive licensee granted an exclusive license shall have an exclusive right to exploit the relevant variety for business purposes within the scope prescribed by the relevant establishment contract (Paragraph 2). As seen earlier, Article 3-2 of the Addenda is newly established as amended by Act No. 12062 on August 13, 2013, and Article 13-2 of the former Seed Industry Act provides that the variety protection right shall be governed by Article 13-2 of the former Seed Industry Act in cases where the variety is protected under Article 13-2 of the former Seed Industry Act.

However, Article 66 of the former Seed Industry Act provides that a person who has obtained a non-exclusive license under the implementation prior to the registration of a request for invalidation trial (paragraph (1)) shall pay a reasonable price to a variety protection right holder or an exclusive licensee (paragraph (2)). Unlike Article 13-2 (4) of the former Seed Industry Act, Article 13-2 (1) of the same Act provides that a person who has conducted or prepared a business of exploiting a protected variety in the Republic of Korea before the date of publication of the variety shall have a non-exclusive license as to the protected variety within the scope of the purpose of the business being conducted or prepared, and in such case a person who has obtained a non-exclusive license shall pay a reasonable price to

As seen in the foregoing case, each registration of plant variety protection for the protected plant variety, such as Drpers, as described in the attached Table 1, has been completed on October 2, 2015 with respect to Drpers, and Drpers, and as to Drpers, on February 3, 2016 with respect to Drpers, the registration of transfer of exclusive license for the protected plant variety, such as Drpers, has been completed on the same day, following the registration of Drpers, etc. as the first exclusive licensee of the protected plant variety, including Drpers, and the registration of transfer of exclusive license for the protected plant variety was completed on the same day.

However, as seen earlier, Article 13-2 of the former Seed Industry Act shall apply to the protection of a protected variety, such as drones, which is known as a known plant variety. The defendant who has obtained a non-exclusive license under Article 13-2 (4) of the former Seed Industry Act shall have a duty to pay a reasonable amount of compensation to the Plaintiff Smiju University, a variety protection right holder of the protected plant variety, such as drones, pursuant to Article 13-2 (4) of the former Seed Industry Act. However, it is difficult to view that the defendant, who is only an exclusive licensee, has a duty to pay a reasonable amount of compensation under Article 13-2 (4) of the former Seed Industry Act for Plaintiff Smiblus.

Therefore, the above argument of the plaintiff Blugian on a different premise is without merit without further review.

B. Determination on the Plaintiff’s claim for the amount of money received from the Plaintiff Sblue (the second preliminary claim)

【Plaintiff’s Claim on Sblue Liber】

Plaintiff Sbluen, the non-exclusive licensee under Article 13-2(4) of the former Seed Industry Act, asserts that even after the exclusive license for the protected plant variety, such as Drlus, was transferred to Plaintiff Sblus, the Defendant still has a duty to pay a considerable amount of price under Article 13-2(4) of the former Seed Industry Act only for Plaintiff Sblus University, which is the holder of the plant variety right, even if the exclusive license for the protected plant variety, such as Drlus, was transferred to Plaintiff Slus, and then the Defendant sought payment of the acquisition amount and delay damages from the transfer to December 31, 2016.

[Judgment]

1) The portion of the claim for the acquisition of druper and Liber plant varieties

As seen earlier, from the date of publication of the instant case to December 31, 2016, 10,00 each time of propagation (i.e., one time (2012) + eight times (two times each year from 2013 to 2016)]; in the case of Liber, 5,00 each time of propagation (one time (one time from the date of publication of the instant case to December 31, 2016) + 0 times each time of exploitation (one time (20 years) + eight times each year from the date of publication of the instant case x 00 times each time of exploitation x eight times (0 times each year from 2013 to 2016); in the case that the Plaintiff’s non-exclusive license is granted in relation to the protected variety such as Divers, etc., the Defendant shall calculate the aggregate of the prices of seedlings = 1,000 won each time from the date of publication of the instant case to the date of publication of the instant variety x 10 weeks from 20 times to the date of publication of 201.

In addition, on August 27, 2019, when the lawsuit of this case is pending, Plaintiff Sbluber received a reasonable price claim under Article 13-2(4) of the former Seed Industry Act from Plaintiff Sblueni University for the period from October 2, 2015 to December 31, 2016 from Plaintiff Sblueni University for the period from Plaintiff Sblui University for Non-hour (U.S.) to Defendant, and Plaintiff Sblui University was notified on September 4, 2019 to Defendant of the above assignment of claim on September 5, 2019. There is no dispute between Plaintiff Sblui and the Defendant.

Thus, the defendant is obligated to pay the above acquisition amount of KRW 30,000,000 and damages for delay to the plaintiff Sblue.

2) The portion of the claim for the acquisition of the right to the Oral plant variety

The Plaintiff asserts that, from February 3, 2016 to December 31, 2016, the exclusive license for the plant variety of the Republic of Korea transferred to him/her, acquired the right to claim a reasonable amount of compensation under Article 13-2(4) of the former Seed Industry Act from February 3, 2016 to December 31, 2016, the Plaintiff claimed against the Defendant for the payment of the acquisition amount and the damages for delay. However, as seen earlier, the Defendant reproduced the Lao seedlings until around 2014, but it is difficult to view that the exclusive license for the Republic of Korea transferred to the Plaintiff Pluluos during the period from February 3, 2016 to December 31, 2016, and there is no other evidence to acknowledge it.

Therefore, the above argument of the plaintiff Blugian on a different premise is without merit without further review.

C. Sub-decision

따라서 드래퍼 등 보호품종의 법정통상실시권자인 피고는, ① 품종보호권자인 원고 미시간주립대학에게 이 사건 출원공개일 이후 드래퍼 등 보호품종의 실시와 관련하여 구 종자산업법 제13조의2 제4항 에 따른 상당한 대가로 합계 107,500,000원[드래퍼 품종 관련 상당한 대가 70,000,000원(제1심에서의 예비적 청구에 따른 인용금액 50,000,000원 + 당심에서 확장한 예비적 청구 중 인용 금액 주20) 20,000,000원) + 리버티 품종 관련 상당한 대가 35,000,000원 + 오로라 품종 관련 상당한 대가 2,500,000원] 및 그중 위 87,500,000원(50,000,000원 + 35,000,000원 + 2,500,000원)에 대하여는 원고 미시간주립대학의 이행청구의 의사표시가 포함된 원고 미시간주립대학의 이 사건 2017. 4. 28.자 준비서면 부본이 피고에게 송달된 다음 날임이 기록상 분명한 2017. 5. 2.부터 피고가 이행의무의 존부 및 범위에 관하여 항쟁함이 타당하다고 인정되는 이 법원 판결 선고일인 2019. 11. 15.까지 민법에 정해진 연 5%의, 그 다음 날부터 다 갚는 날까지 소송촉진 등에 관한 특례법 제3조 제1항 본문, 구 소송촉진 등에 관한 특례법 제3조 제1항 본문의 법정이율에 관한 규정(2019. 5. 21. 대통령령 제29768호로 전부 개정되기 전의 것)에 의한 연 15%의 각 비율로 계산한 지연손해금을[원고 미시간주립대학은 이 사건 출원공개일인 2012. 3. 15. 이후부터의 지연손해금의 지급을 구하나, 품종보호권자가 구 종자산업법 제13조의2 제4항 에 의하여 상당한 대가를 청구하였을 때에 당사사 사이에 협의가 성립되지 아니하여 법원이 결정해주는 상당한 대가는 그 지급청구의 의사표시를 한 때에 소급하여 그 효력이 생기는 것이므로, 특별한 사정이 없는 한 상당한 대가에 대하여는 법원 결정 시가 아니라 상당한 대가 지급청구의 의사표시가 상대방에게 도달한 때를 그 이행기로 보아야 하므로( 대법원 2018. 3. 15. 선고 2015다239508, 239515 판결 참조), 위 인정 범위를 초과하여 지연손해금의 지급을 구하는 원고 미시간주립대학의 청구는 이유 없다], 나머지 20,000,000원에 대하여는 원고 미시간주립대학의 이행청구의 의사표시가 포함된 원고 미시간주립대학의 이 사건 2018. 9. 10.자 준비서면 부본이 피고에게 송달된 다음 날임이 기록상 분명한 2018. 9. 12.부터 피고가 이행의무의 존부 및 범위에 관하여 항쟁함이 타당하다고 인정되는 이 법원 판결 선고일인 2019. 11. 15.까지 민법에 정해진 연 5%의, 그 다음 날부터 다 갚는 날까지 소송촉진 등에 관한 특례법에 의한 연 주21) 12% 의 각 비율로 계산한 지연손해금을 각 지급할 의무가 있고(원고 미시간주립대학은 이 사건 출원공개일인 2012. 3. 15. 이후부터의 지연손해금의 지급을 구하나, 앞서 본 바와 같이 상당한 대가 지급청구의 의사표시가 상대방에게 도달한 때에 이행기가 도래하므로 위 인정 범위를 초과하여 지연손해금의 지급을 구하는 원고 미시간주립대학의 청구는 이유 없다), ② 원고 탑블루베리에게 양수금 30,000,000원 및 이에 대하여 원고 탑블루베리의 이행청구의 의사표시가 포함된 이 사건 2019. 9. 6.자 청구원인변경신청서 부본이 피고에게 송달된 다음 날임이 기록상 분명한 2019. 9. 10.부터 피고가 이행의무의 존부 및 범위에 관하여 항쟁함이 타당하다고 인정되는 이 법원 판결 선고일인 2019. 11. 15.까지는 민법에 정해진 연 5%의, 그 다음 날부터 다 갚는 날까지는 소송촉진 등에 관한 특례법에 의한 연 주22) 12% 의 각 비율로 계산한 지연손해금을 지급할 의무가 있다[원고 탑블루베리는 2015. 10. 2. 이후부터 지연손해금의 지급을 구하나, 피고는 양수인인 원고 탑블루베리로부터 이행청구를 받은 때에 비로소 이행지체에 빠지게 된다고 할 것이므로, 위 인정 범위를 초과하여 지연손해금의 지급을 구하는 원고 탑블루베리의 청구는 이유 없다].

6. Conclusion

Therefore, the plaintiffs' claims shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as they are without merit. Since the part against the defendant as to the prohibition of infringement and prevention of infringement of the judgment of the court of first instance and the claim against the defendant as to the destruction of infringed products is unfair, the defendant's appeal shall be accepted and the plaintiffs' claim against the defendant as to the revoked part shall be dismissed. Since the part of the claim against the defendant as to the claim against the defendant in the judgment of first instance as to the claim against the defendant in the judgment of first instance including the claim extended by the plaintiffs and the claim for additional addition of the plaintiff Sblugian, it is so decided as per Disposition 2.

Judges Rohn-man (Presiding Judge) Kim Dong-dong

(1) The plaintiff's non-permanent university filed a claim for the amount of 200 million won and damages for delay under Article 13-2 (4) of the former Seed Industry Act (wholly amended by Act No. 11458, Jun. 1, 2012; hereinafter the same shall apply) against each protected plant variety listed in the separate sheet No. 1 at the first instance court, for the infringement of the right to temporary protection of each protected plant variety listed in the separate sheet No. 1 at the same time, or for the damages for delay stated in the separate sheet No. 2 at each of the separate sheet No. 300,000 won and the damages for delay stated in the separate sheet No. 1 at each of the separate sheet No. 40,000 won and the damages for delay stated in the separate sheet No. 2 at each of the separate sheet No. 1 at the court for the damages for infringement of the right to interim protection of each of the protected plant variety stated in the separate sheet No. 2 at least 500,000,000 won.

Note 2) did not separately determine on a preventive claim based on the Information and Communications Network Act.

3) In the case of preliminary consolidation, several claims are indivisible in one litigation procedure, so even in a case where a decision is made only on the main claim and a decision is not made on the conjunctive claim, if an appeal is filed against the judgment, the part of the conjunctive claim omitted shall also be considered to be transferred to the appellate court (see, e.g., Supreme Court en banc Decision 98Da2253, Nov. 16, 2000). Therefore, since the defendant appealed against the part against the defendant among the judgment of the first instance, and filed an appeal against the part against the defendant, the part of the conjunctive claim against the defendant under Article 13-2 (4) of the former Seed Industry Act, among the plaintiffs' claim against the defendant, for which the first instance court did not make a decision, shall also be deemed to

4) For the purpose of inserting trees, this refers to a kind or roots separated from the body of the mother, and a complete plant body by inserting inserted trees. * Hinp: A propagation method by which part of the branches, roots, leaves, etc., are sticked to the ground and then a new plant replacement is created by sticking them into the ground.

Note 5)

Note 6)

(7) On January 8, 2014, Nonparty 3, the Defendant’s wife, completed business registration regarding wholesale and retail business of agricultural materials.

8) Furthermore, according to Gap evidence Nos. 65-2, the scope of non-exclusive license is limited to activities for the transfer (sale), lease, transfer, or lease of seedlings of each protected plant variety of this case, while entering into an agency contract and non-exclusive license agreement with the non-party 6 on April 12, 2016 with the non-party 6, which is the exclusive licensee for each of the protected plant variety of this case, to engage in the business related to the blus seedlings from around 2015 (mutually omitted) with the trade name "(mutually omitted)", which is "(mutually omitted)" as the exclusive licensee for each of the protected plant variety of this case. Accordingly, the plaintiffs can be acknowledged as having agreed to enter into a separate contract in advance to grant permission for the propagation, production, manufacture, export, or import of seedlings of each of the protected plant variety of this case, which is different from the plant variety protection right holder's license holder's license holder's act related to the exploitation of the protected plant variety of this case.

9) Although the Plaintiffs did not specify a reasonable price under Article 13-2(4) of the former Seed Industry Act that the Defendant is obliged to pay to the Plaintiffs separately for each Plaintiff and each kind of product, the Plaintiffs are deemed to have asserted as above on the premise that a reasonable price for each Plaintiff and each kind of product that the Defendant is obligated to pay pursuant to Article 13-2(4) of the former Seed Industry Act is superior to the amount claimed (see, e.g., the Plaintiff’s reference document on October 8, 2019).

10) However, the Plaintiffs did not seek a reasonable amount of compensation in relation to the partnership theory in this Court.

Note 11) On December 1, 201, the conversion into the exchange rate (1,140 won/$$1,140) as of December 1, 201 is 1,162 won (=1.02 x 1,140 won).

Note 12) The size of the inner diameter is 5cm and 8 streets and 5 streets are placed in length, and the outer side is ordinarily 54cm wide and 28cm long (see Evidence No. 46, 23 pages).

Note 13) Since 2011, the Defendant started to propagate brus seedlings of a protected plant variety, such as Dr. In light of the fact that on April 17, 2013, the Defendant posted a notice to the effect that 2 years and 3 years have elapsed from among Blus seedlings in the instant Blusg on April 17, 2013, the Defendant appears to have been used to refer to 2 years including the relevant year in which 2 years have been reproduced and 3 years have been reproduced.

Note 14) One time (2012) + 6 times (2013 to 2015, respectively)

Note 15) One time (2012) + six times (2013 to 2015, respectively)

Note 16) One time (2012) + 4 times (2013 to 2014, respectively)

17) According to Gap evidence Nos. 85 and 86, the fact that the first preliminary claim for the transfer registration of claims was made on August 27, 2019, and the assignment notification of claims made on September 4, 2019, which is the day following the date of registration of exclusive licenses held by the plaintiff U.S. University against the defendant, such as the plaintiff U.S. University on October 2, 2015 and December 31, 2016, which is the day following the date of registration of patent licenses held by the plaintiff U.S. University on the defendant, can be acknowledged that the transfer registration of claims under Article 13-2 (4) of the former Seed Industry Act was made. However, as seen above, since the first preliminary claim for the transfer registration of claims was made on August 27, 2019, the defendant's claim for the transfer registration of claims under Article 13-2 (4) of the former Seed Industry Act to the plaintiff U.S. 1 and the defendant's claim for the transfer registration of claims against the plaintiff 2.

Note 18) On the first half of 2016 + on the second half of 2016

Note 19) On the first half of 2016 + on the second half of 2016

(20) As seen earlier, the Plaintiff’s non-permanent university sought payment of KRW 100 million and its delay damages from the first instance court to the first instance court, and extended the claim by this court to seek payment of KRW 100 million and its delay damages.

Note 21) The Plaintiff-U.S. University shall seek damages for delay calculated at the rate of 15% per annum with respect to KRW 20,00,00 quoted in this Court among the conjunctive claims for payment of the amount of KRW 15% per annum. However, the provision on statutory interest rate of the main sentence of Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, which was amended by Presidential Decree No. 29768 on May 21, 2019 and entered into force on June 1, 2019 pursuant to Article 1 of the Addenda, provides that “The statutory interest rate under the main sentence of Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings shall be 12/100 per annum, which was the legal interest rate of KRW 15% per annum,” and Article 2(1) of the Addenda provides that “The previous provision on the interest rate of KRW 20,000, which was in force before the appellate court was in force.”

(22) Plaintiff B Blue claimed for the payment of damages for delay calculated at the rate of 15% per annum with respect to transfer money. However, in light of the purport of the amendment of the main text of Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 29768, May 21, 2019) pursuant to Article 1 of the Addenda, which was amended by Presidential Decree No. 29768, June 1, 2019, Plaintiff Blue added Plaintiff Blue’s claim for new transfer money to the second preliminary claim at the appellate stage as in the instant case, and where the additional lawsuit on the claim continues to exist in the court after the enforcement of the amendment provisions on statutory interest rate under the main sentence of Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, the interest rate under Article 1 of the Addenda should be applied to statutory interest rate (see Supreme Court Decision 2016Da226806, Sept. 23, 2016).