[1] In a case where the challenged device contains only a part of the essential elements indicated in the claim scope of the registration request scope of the registered device, and the remainder of the elements are lacking, whether the challenged device falls under the scope of the right of the registered device (negative)

[2] In confirming the scope of a right, whether part of the elements indicated in the scope of a request for registration of a utility model can be interpreted by arbitrarily excluding them from components (negative)

[1] In a case where a claim within the scope of a request for registration of a registered device consists of multiple elements, it is protected by a professional engineer as a whole, which is an organic combination of each element, and each element is not protected independently. Thus, in a case where a claim within the scope of a request for registration of a registered device has only some of the essential elements specified in the claim within the scope of a request for registration of a registered device, and the remaining elements are lacking, in principle, the relevant request for registration does not fall within the scope of a right within the registered device.

[2] The scope of a request for registration of a utility model must be described only by matters indispensable for the composition of the device. Since the scope of a utility model is determined by matters set forth in the scope of a request for registration, all of the elements set forth in the scope of a request for registration of a utility model must be deemed an essential element that is not indispensable for the composition of the utility model design, and a part of them shall not be arbitrarily excluded from the elements.

[1] Articles 9(4) and 50 of the Utility Model Act / [2] Article 9(4)3 of the Utility Model Act, Article 42 of the Utility Model Act, Article 97 of the Patent Act

[1] Supreme Court Decision 98Hu2351 delivered on November 14, 2000 (Gong2001Sang, 65) Supreme Court Decision 98Hu2856 delivered on June 1, 2001 (Gong2001Ha, 1539) Supreme Court Decision 99Hu1584 Delivered on September 7, 2001 (Gong2001Ha, 2196)

(Patent Attorney Lee Ho-il, Counsel for defendant-appellant)

Choyang Medical Co., Ltd. (Patent Attorney Cho Jong-ho, Counsel for defendant-appellant)

September 24, 2004

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on September 23, 2003 by the Korean Intellectual Property Tribunal on the case No. 2222 dated September 23, 2003 shall be revoked.

1. Basic facts

[Evidences: Evidences 1 to 6, 8, 1 to 5, 7, 8]

A. The registered complaint of this case

The Plaintiff’s registered device of this case (registration No. 23014, Jan. 8, 2001, registration No. 2301, May 23, 2001) pertains to “clothecing natural rooftop” and the scope of the Plaintiff’s application for registration and drawings are as shown in attached Table 1.

(b) A device subject to verification;

The drawings and specifications of a petition for confirmation shall be as shown in attached Form 2.

(c) Compared designs

(1) Comparison 1

The scope of the application for registration and drawings are listed in the Utility Model Gazette (No. 2000-7280, No. 1) dated April 25, 2000 with respect to "the attachment structure of the radiation from the original radiation" as stated in the Utility Model Gazette (No. 2000-7280, No. 1).

(2) Comparison 2

The term "structure attached to a fiber board" as stated in the Utility Model Gazette (No. 1998-68702, No. 2) dated December 5, 1998 and the scope of the application for registration and drawings are as listed in the attached Table 4.

(3) Comparison 3

On May 12, 198, the publication of the Utility Model Gazette (No. 63-71054, No. 3) published in the Japanese Utility Model Gazette (No. 63-71054, No. 63 of the Disclosure Model Gazette) is related to the "contest". The drawings are as shown in the attached Table 5, in order to place a dies board in the form of chip which discharges the original external lines of 7 to 10 U.S. S. dollars at an appropriate location on the inner side of the body, such as the bridge and so on, and at the same time, be covered by the chip in the form of a chip which discharges the original external lines of 7 to 7-10 U.S. dollars, and be covered by the shape of a hole in the part abutting on the upper part of the clothes.

(4) Comparison 4

The Utility Model Gazette (No. 178973, No. 178973, No. 4) published in the Utility Model Gazette on April 15, 2000 is related to the "brupt lease to be attached with a health functional asset" and the detailed description of the device is described in the support body (72) which is an attachment to be attached with a net (30). The detailed description of the device is as shown in the attached Table 6.

(5) Comparison 5

On May 14, 1999, as a full-time advertisement (Evidence No. 31, No. 5) published on the Korean daily bulletin of May 14, 199, the pictures with a large number of protruding-type protruding-outs are initiated.

(6) Comparison 6

On December 1, 200, the Utility Model Gazette (registration No. 206400, No. 2068) published in the Utility Model Gazette (registration No. 206400, No. 8) is related to the structure of the attachment of a bedclothes attached with a rooftop. In the bedclothes attached with a rooftop, the structure of the attachment of a bedclothes attached with a roof (20) is consistent with the combined tool (4) in which the interior side of a string unit (20) in which a rooftop (10) is written in a string (3) in a string, and the left-hand part of the said fixed unit (20) is installed in a 21 unit (30) of a string unit (30) for the purpose of the attachment (30). The drawings are as shown in the annexed Form 7.

D. Details of the instant trial decision

The defendant filed a claim against the plaintiff for a trial to confirm the scope of right of the registered complaint of this case against the plaintiff, since the registered complaint of this case had already been publicly announced prior to the application of the comparative complaint 1 to 3, or could easily have been created from the publicly notified technology, and since the registered complaint of this case does not contain any technical outline of the registered complaint of this case and the registered complaint of this case contains no packing part at all, it is different from the registered complaint of this case, the registered complaint of this case is not subject to the scope of right of the registered complaint of this case. The Korean Intellectual Property Tribunal deliberated this as 202Da2222, and tried on September 23, 2003 and tried by the defendant for the following reasons.

E. Summary of the reasoning of the instant trial decision

In light of whether the registered device of this case was published prior to the filing of the comparable device 1 through 3, the comparison device 1 and 2 did not find any composition of synthetic resin raw materials (1) that form a tent with a large number of distribution hole on the upper side of the high-end plastic paper paper with a natural rooftop in the registered device of this case, and the composition of synthetic resin raw materials (1) that form a water bed and the special species of species (3) are made. The comparable device 3 is completely different from the registered device of this case, its technical field and composition, so the registered device of this case is not deemed to have been published pursuant to the comparison device 1 through 3.

However, in comparison with the design of the subject matter of confirmation and the design of the registration in this case, it is not different from that of the subject matter of confirmation that, among the technical composition of the subject matter of registration in this case, natural rooftops are sealed as plastic packaging paper, the upper side of them form a large number of distribution factory by cutting the natural rooftops into and out of the outer film to attach it on the surface of the set, and there is no difference between the subject matter of confirmation and the upper side of the distribution factory, and the number of the above distribution factory units is merely a simple change of design. However, in the subject matter of confirmation, the difference in the number of the above distribution factory units is limited to a simple change of design, but the difference between the raw resin (1) in the subject matter of registration in this case and the special species (3) in this case, it is not entirely included in the composition of the water bed, and the subject matter of registration in this case is different from the subject matter of registration in this case, and the subject matter of confirmation is not included in the scope of the right.

2. The parties' assertion on the legitimacy of the instant trial decision

A. Grounds for revocation of the Plaintiff’s trial decision

(1) In the scope of the application for registration within the scope of the instant application for registration, the part pertaining to the composition of the instant application for registration is not a technical element of the registration, since the applicant explicitly expressed that the part "in the composition of the instant application for registration is a cryptive plastic paper (6) with high-frequency high-frequencys (5) on the surface of the trademark of synthetic resin (1) and high-speed plastic paper (6) with high-speed synthetic resin," which is merely a composition of synthetic resin (1) and special species of species of species (3). However, the part pertaining to the composition of the instant application for registration is not a component of the instant application for registration. The elements of the instant application for registration are composed of high-speed natural rooftop as packaging plastic paper, high-speed plastic plastic paper with high-speed, high-frequency, high-frequency, high-frequency, high-speed, high-speed, high-speed, high-speed, and high-speed, high-speed and high-ranking plastic paper with high-speed film and high-ranking film in its composition.

(2) Even if the above premise composition of the instant petition for registration is one of the elements of the instant petition for registration, it is not an important element, and even if it is omitted, it can achieve the technical purpose of the instant petition for registration. Thus, the instant petition for registration is subject to confirmation, which omitted the above composition beyond the scope of rights in the instant petition for registration, falls under the scope of rights in the instant petition for registration.

B. Defendant’s assertion

In addition, the registered device of this case does not have all the elements of the registered device of this case. The registered device of this case is merely a device that is publicly notified by the comparable device 1 through 6 prior to the filing of the application, or that a person with ordinary knowledge in the relevant technical field can easily make a device from the compared device 1 through 5, and furthermore, the device of this case also can be easily implemented from the comparative device 1 through 5, or it is merely a change in the composition of the comparative device 6. Thus, the registered device of this case does not fall under the scope of the right to the registered device of this case.

3. Determination on the legitimacy of the instant trial decision

A. First, in preparation for the instant registered complaint and the instant complaint, we examine whether the instant complaint falls under the scope of the right to the instant registered complaint.

(1) If a claim within the scope of a request for registration of a registered device consists of multiple elements, each element is protected as a whole, which is systematically combined, and each element is not protected independently. Thus, if the subject matter of confirmation, which is compared with the registered device, has only a part of the essential elements as stated in the claim within the scope of a request for registration within the scope of the registered device, and the remaining elements are lacking, in principle, the subject matter of confirmation does not fall within the scope of the right within the registered device (see Supreme Court Decision 9Hu1584 delivered on September 7, 2001). Meanwhile, the subject matter of a request for registration of a utility model should be described only with matters which are not indispensable for the composition of the device (Article 9(4)3 of the Utility Model Act), and the scope of a utility model is determined by matters which are stated within the scope of a request for registration (Article 42 of the Utility Model Act, Article 97 of the Patent Act), and it cannot be interpreted as a part of the elements of a utility model within the scope of a request for registration.

(2) If the components of the instant registered device are divided according to the scope of the claim for registration, it is divided into ① a water bed composed of the synthetic resin raw materials (1) and the plant of the same species (3) containing the bio-mixed floor (2) such as aluminium and bedumumumumumumumumumumumumumumumumumumumumumumumumumum, ② a package plastic paper (6) containing a large number of natural rooftops (5) on the surface of synthetic resin raw materials (1) is composed of high-frequency or primary high-frequency or high-frequency, ③ a package plastic paper (5) on the upper side of a natural vinyl (6).

① The above composition is with respect to the structure of water bed, which is the object of the instant application for registration. It is characterized by its characteristic that water bed from the bottom to the bottom of the three floors such as the species (3) of the plant (the plant) of the plant of this case, the plant of the plant of this case, the plant of this case, and the plant of the plant of this case is composed of three sub-storys (2) of the plant of the plant of this case, such as the plant of the plant of the plant of this case, the plant of this case, and the synthetic resin of the plant of this case. Accordingly, the design of the plant of this case is composed of three sub-storys (2) of the plant of this case, such as the plant of the plant of the plant of this case. On the other hand, the plant of the plant of this case is composed of the plant of the plant of the plant of this case (11), and there is lack in the composition of the plant of the plant of this case, and it is hard to see that the plant of this case is composed of the above 2).

As to this, the plaintiff argued to the effect that the composition is indicated in the premise of the scope of the application for registration, and it is not a component of the registered device of this case, since the applicant stated that it is not an element of the registered device of this case. However, as long as it is evident that the composition is included in the scope of the application for registration within the scope of the registered device of this case, it shall be deemed as constituting the component of the registered device of this case, and it shall not be arbitrarily excluded from the component of this case on the ground that it is stated in

In addition, the plaintiff argues that although the composition is not an essential element, it is nothing more than an original element, it can achieve the technical purpose of the registered device of this case even if it is omitted, and accordingly, it falls under the scope of the right in the registered device of this case. However, the claim of a claim of a utility model registration shall be stated only in the matters which are not indispensable for the composition of the device (Article 9 (4) 3 of the Utility Model Act), and what matters are indispensable for the composition of the device should be stated within the scope of a claim for registration. The technical scope of the registered device is determined by the matters indicated within the scope of the claim for registration (Article 97 of the Patent Act as applied mutatis mutandis under Article 42 of the Utility Model Act). Since it is difficult to determine the technical scope of the registered device as one of the matters which are indispensable for the composition of the device of this case, it cannot be seen that it is relatively important to recognize the modification of the registered device of this case as an extension of the scope of the registered device of this case.

② The above composition is composed of natural-styles (5) cut into packaging plastic paper (6) for the purpose of fixing natural-styles (5) to synthetic resin raw materials (1) and then melting them into packaging plastic paper (6). The composition is composed of high-frequency or ultra-frequency folding or melting them on the surface of synthetic resin raw materials (1). In response thereto, it is within the height of the board of confirmation (34) so as to fix the yellow board (34) to mather (1) so as to fix it to mather (32) the upper board of the package (33) equipped with the upper board (33) so as to be located at the upper end of the package (33) equipped with mat film (31), high-frequency and high-frequency processing, and then it is composed of melting natural-styles (31) so as to prevent the difference between the upper part of each of the above components and the upper part of the body (34) combined with the outer part (13) of the outer part (13) and its outer part (34).

③ The above composition was composed of a large number of ingredients (7) beneficial to both primary and human body by forming a large number of circulation factory (3) on the upper surface of the upper end of the outer plastic paper (5) with high-end raw roof. In response thereto, in the height subject to confirmation, there is a rectangular hole formed by cutting off the packaging members of the belt form (33) with high-frequency processing. There is little common point in that both constituent parts form forms a hole for passage through natural rooftop (5) or sloak lines released from sloak board (34). However, distribution factory (7) within the registered height of this case was formed in a large number of parts on the upper end of the outer side of the outer plastic paper (5). On the other hand, there is a difference between the inner part of the outer upper part (34a) and the outer part (34a), so that there is no difference between the inner part and the outer part (34) of the outer part (34a) of the registered height in this case.

(3) Therefore, in the case of the instant complaint subject to confirmation, there is a lack of composition among the components of the instant complaint, and the composition of the instant complaint is different from that of the instant complaint subject to confirmation corresponding to the composition of the instant registered complaint, and both composition are not in an equal relationship. Therefore, the instant complaint subject to confirmation does not fall under the scope of rights in the instant complaint subject to registration.

B. Sub-committee

Therefore, since the registered device of this case is different from the registered device of this case, the registered device of this case does not fall under the scope of the right of the registered device of this case without any need to further examine whether the registered device of this case was publicly notified by the comparison device 1 through 6. Accordingly, the decision of this case is justified.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Jae-hwan (Presiding Judge)