[1] In a case where there is no inventive step since a registered device combines a prior art for public use, whether the scope of right is recognized (negative)

[2] The case holding that the scope of the right cannot be acknowledged since the registered device merely combines the publicly known technology

[1] In order to determine whether a device falls under the scope of a right on the registered device, the scope of the right should be determined first on the basis of the scope of the request for registration on the registered device. In determining this, the technology in the registered device should be excluded from the scope of the right unless it is closely combined with a new one. Thus, if the entire device in the registered device is for the public use at the time of the application, the grounds for recognizing the scope of the right are lost. Even if the device in the registered device is combined with the publicly known one, if it is recognized that the effect of each technology was more enhanced than the simple aggregate of the action effect that each technology had existed before the combination, and if a person with ordinary knowledge in the technical field cannot easily implement it, the scope of the right is new and non-obviousness as a device. However, if the device in the registered device is merely a simple aggregate of the action effect that each technology had existed before combination with the publicly known technology, and if a person with ordinary knowledge in the technical field can easily implement it, the scope of the right cannot be acknowledged as a device without new and non-obviousness.

[2] The case holding that the scope of the right cannot be recognized on the ground that the registered device is a simple combination of the cited device (1) and the quoted device (2) as a prior art, and in light of the composition and action effects of the quoted device, the action effects of the registered device are merely a simple set of the action effects of the quoted device, and it cannot be deemed that the registered device can easily be carried out by a person with ordinary knowledge in the technical field, since the registered device cannot be seen as a device with newness and inventive step.

[1] Article 57 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) (see current Article 97), Article 5(2) (see current Article 4(2)), Article 25(1)2 (see current Article 35), and Article 29 of the former Utility Model Act (amended by Act No. 4209 of Jan. 13, 1990), Article 5(2) (see current Article 4(2)), Article 25(1)2 (see current Article 35), and Article 29 of the former Patent Act / [2] Article 57 (see current Article 97 of the former Patent Act (amended by Act No. 4207 of Jan. 13, 1990) of the former Utility Model Act (amended by Act No. 4209 of Jan. 13, 190)

[1] [2] Supreme Court en banc Decision 81Hu56 delivered on July 26, 1983 (Gong1983, 1334), Supreme Court Decision 89Hu1851 delivered on September 28, 1990 (Gong1990, 2165), Supreme Court Decision 94Hu982 delivered on January 23, 1996 (Gong196Sang, 672), Supreme Court Decision 94Hu176 delivered on February 23, 1996 (Gong196Sang, 1115), Supreme Court Decision 95Hu177 delivered on November 26, 1996 (Gong197, 90), Supreme Court Decision 196Hu19759 delivered on July 22, 1997 (GongGong1997, 197).

Medical Heavy Industries Co., Ltd. (Attorney Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Appellants

Korean Intellectual Property Trial Office Decision 93Na284 dated December 30, 1996

The appeal shall be dismissed. The costs of appeal shall be assessed against the respondent.

The grounds of appeal are examined.

1. According to the reasoning of the decision of the court below, the court below recognized that both devices are identical to the technical composition or operation effect of the device as a whole for the reasons as stated in the judgment of the court below at the end of preparation of the registered device of this case concerning "the arms covered by the mother," which was registered on September 27, 198 (the omission of the utility model registration number) on December 23, 1991, and (a) the device of this case was identical to the publicly known device (2) (2) of the public notice device of this case). However, even if (a) the device of this case is identical or similar to the registered device of this case and its technical composition and operation effect, the device of this case does not fall under the scope of the right within the registered device of this case.

2. In order to determine which device falls under the scope of a right to a registered device, the scope of the right should first be determined on the basis of the scope of the request for registration of the registered device. In determining the scope of the right, the prior public technology should be excluded from the scope of the right unless it is closely combined with a new technology. Thus, in a case where the entire draft of the registered device is the prior public technology at the time of application, the basis for recognizing the scope of the right is lost (see, e.g., Supreme Court en banc Decision 81Hu56, Jul. 26, 1983; Supreme Court Decision 95Hu177, Nov. 26, 1996). Furthermore, even if a combination of the prior public technology is made, if the action effect increased compared with that of each technology prior to combination is recognized, and if a person with ordinary knowledge in the technical field concerned cannot easily implement it, the scope of the right should be recognized as a new device, while a person with ordinary knowledge in the technical field is not able to easily implement it before combination 196.

3. According to the record, the registered device of this case is designed to form a window from the outside of the window by removing the existing manual hand Hand and putting out a part of the entrance, regardless of its model, with a view to forming both the window and the arm's length door door from the outside, and it is necessary to see the door door on the inside side of the arm's length door with the home stick, and the knife is set up in four bifes, with a fixed board installed with the reduction machine and the mother door fixed in four gifes, with a view to the scope of the request for registration, the quoted design (1) (37-7604 of the Utility Model Model Gazette 37-704 "the window gras platform of this case") is installed within the knife and the knife line installed within the knife and the knife line installed within the knife line with the upper part of the knife, without affecting the thickness of the knif.

Therefore, the technical composition of the instant registered device, which installs a bow in the arms and affix it to the fishing, is cited in accordance with subparagraph (1) of the cited proposal. The technical composition of the instant registered device, where the finger and tobacco stick are received in the arms with the home, and the accelerator and the string are fixed in the fixed board. [In the case of the artificial device (2), although the cigarette stick is not installed separately in the artificial device (2), the cigarette stick can be carried out concurrently in the role of the home). Thus, the instant registered device is a mere combined device between the cited proposal (1) and the quoted proposal (2). In light of the composition and action effect of the above quoted proposal, it is difficult to see that the effect of the instant registered device is merely an action effect and the simple combination effect of the cited proposal, and thus, it is difficult to see it as a person having ordinary knowledge and effects prior to its registration in the field of the instant design.

Therefore, since the registered complaint of this case cannot be accepted within the scope of the right, the court below is just in holding that the design of this case does not fall under the scope of the right in the registered complaint of this case. There is no error of law such as misunderstanding of legal principles as to newness of the device, violation of the rules of evidence, or incomplete hearing, as otherwise alleged in the ground of appeal. The grounds of appeal

4. Therefore, the appeal shall be dismissed, and all costs of appeal shall be borne by the appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)