(영문) 특허법원 2006.11.23.선고 2006허1926 판결

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Defendant

Conclusion of Pleadings

Imposition of Judgment

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(영문) 특허법원 2006.11.23.선고 2006허1926 판결

등록무효(실)

Cases

206Heo1926 Nullification of Registration (per Office)

Plaintiff

1. Electric transport;

2. Pattern;

Macheon-si, Plaintiffs’ Address

Attorney Shin Young-young, Counsel for the plaintiff-appellant

Defendant

Radical power plant

Macheon-si

Patent Attorney Lee Jae-young

Attorney Hong-soo et al.

Conclusion of Pleadings

October 12, 2006

Imposition of Judgment

November 23, 2006

Text

1. The plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Purport of claim

A utility model registration among a trial decision rendered by the Intellectual Property Tribunal on January 31, 2006 by the case No. 2005Da1681

Of the scope of a request for registration of a utility model No. 95390, the part concerning claims 1. Claims shall be revoked.

Reasons

1. Basic facts

A. The name of the registered design (1) of this case: the date of application for washing hydrogen (2) / the registration date / the registration number: February 3, 1994 / the owner of a utility model right No. 95390 (3) on March 19, 1996 / The plaintiffs (4) claims for utility model registration (the drawings are as shown in Appendix 1) (the drawings are as shown in Appendix 1)

1. Claim 1. In the case of the United States of America (hereinafter referred to as "Composition 1") where punch (6) was made in depth with the body of the claim 7 overlaps, it is referred to as "one set"; hereinafter referred to as "each set of Section 1"; hereinafter referred to as "the rest of Claim 1"; hereinafter referred to as "the remainder of Claim 1") which form a washing part (3) protruding in the surface of the rectangular site (7) with the rectangular site (hereinafter referred to as "2") with the rectangular site (7); and hereinafter referred to as "the second part") which form a drainage home (4) between the washing part (3); hereinafter referred to as "Composition 1 of Section 3") with the characteristics of the non-paragraph 1 (hereinafter referred to as "the rest of Claim 1); and

2. In regard to Claim 1, there is a water supply system (1) characterized by forming a washing room (3a) and a passage (5) continuously and repeatedly to form a washing room (3). The water supply system (4) and passage (5) are characterized by forming a traffic by upstream.

3. In regard to Claim 1, there is a water supply system (1) with the characteristic of forming a washing part (3a) and a washing part (3) with a passage (5) between the washing part (3a) and the washing part (3) with a view to forming a traffic flow between the drainage home (4) and (5).

(5) The purpose and effect of the device described in the detailed description of the device has been transferred to trans and synthetic resin with trans and trans. Since the trans and trans used trans as a body in depth to trans, they are not easy to flow out at the time of washing because the trans and trans are in a direct fashion on the surface of the hydrogen, so if they are repeatedly used due to a trans or garbage, oil, trans attached to the trans, and thus, they are dissanitaryly damaged if they are removed from the surface of the washing or trans to 3 punch (3 punch) the effect of washing or trans are designed to solve this problem, so it is also difficult to see the surface of the washing or trans to remove the oil and trans into the surface of the washing or trans without being able to clean up (3) the surface of the washing or trans.

B. Compared prior design (1) 1 (No. 3, and drawings are as shown in annexed Form 2.)

On May 2, 1987, the Design Gazette (Registration No. 72284) published on May 2, 1987 is a description that the combination of the shape and shape of the material expressed in the drawing is a summary of the device, the material is a chemical engineer and a paper vinyl, and the shape of the material is in the form in which a fluent vinyl is cut down by a fluent vinyl with a chemical engineer.

(2) Compared table 2 (No. 4, main drawings are as shown in Appendix 3.0)

In the Utility Model Gazette published on August 23, 1991 (Public Notice Number 191 - 6441) and published on the Utility Model Gazette (Public Notice Number 191 - 6441), the term "in the case of inserting spunch (2) in the synthetic Textiles Corresponding within (1) directly manufactured synthetic fibres such as metal carin, the protruding part (4) composed of protruding part (5) directly composed of metal carin in the synthetic Textiles 2091 and the protruding part (4) composed of protruding part (5) with a large volume of circulations among protruding part (4).

(3) Compared table 3 (No. 5, drawings are as shown in Appendix 4.)

On April 7, 198, the Utility Model Gazette (Public Number 88 - 1969) published in the Utility Model Gazette (Public Number 88 - 1969) contains a description that "in direct setting up a scarcity (1) which connects Eul company into a synthetic fiber and every two parts, and forms a erogate file by reconcing Eul company (1) into a synthetic fiber, and in one side, Eul company (1) directly prepares erogate (1), and the other side forms the Home (4) and sets up the Home (3) with the outside thousand (3).

(4) Comparison design 4 (Nos. 6 and drawings are as shown in Appendix 5.0)

On April 2, 1990, the Design Gazette (Registration No. 102026) published on Apr. 2, 1990 is related to "the hydrogen," and the combination of the shape and shape of the material expressed in the drawing is the summary of the device, and the material is "punch, synthetic, metal yarn".

(5) 5 (No. 7 Evidence, and drawings are as shown in Appendix 6.) of the comparable design

On April 2, 1990, the Design Gazette (No. 102026, No. 1026) registered on April 2, 199 is related to 'the hydrogen', which is published in the Design Gazette (No. 10206, No. 1026). There is an explanation that the combination of the shape and shape of the product expressed in the drawing is the summary of the device, and the material is 'punch, synthetic, metal yarn'.

C. (1) The Defendant filed for a registration invalidation trial on the instant registered complaint on the ground that the instant registered complaint is identical or easily designed with the comparable complaint, and thus, there is no new or non-obviousness, and the instant2 and 3 device of this case is a device that is not specifically indicated on its technical composition and action effect, and thus it is impossible to complete or implement the instant registered complaint.

(2) The Korean Intellectual Property Trial and Appeal Board reviewed the case as 2005Da1681 on January 31, 2006, and rendered the decision of this case to dismiss the above request for a second and third device of this case on the ground that the invention of this case is not new since the comparative device of this case was substantially identical with the comparative device of this case, its purpose, its composition, and its action effects, which was publicly known prior to the filing of the application. Meanwhile, the second and third device of this case cannot be deemed to be a device that has not been completed or worked, and newness or non-obviousness cannot be denied because the composition and action effects are different from the comparative device of this case.

【Evidence No. 1, Evidence No. 2-1, Evidence No. 2-2, Evidence No. 3-7, the purport of the whole pleadings

2. Summary of the grounds for revoking the decision by the plaintiffs

A. The defendant did not have produced the "Shap," which is the goods within the registered complaint of this case, from the date of the appeal of this case to the date of the appeal of this case, and thus, it is not an interested party entitled to file a petition for a registration invalidation trial on

나. 이 사건 등록고안의 명세서 중 고안의 상세한 설명에 기재된 “ 텅스텐사를 합성 수지사와 함께 편직하여 나일론 직물지의 표면에 돌출되게 직조함으로써 돌출된 텅스 텐사가 세척부를 형성하고 ” 부분 등에 의하여 이 사건 제1항 고안의 제2 구성을 보완하여 보면, 이 사건 제1항 고안이 고안의 상세한 설명에 의해 뒷받침되지 아니하여 명세서 기재요건에 위배되었다거나 실시가 불가능하다고 할 수 없다 ( 피고는 이 사건에서 이 사건 제1항 고안은 제2 구성 중 ' 텡스텐사를 직물지와 함께 편직하여 부분이 명세서 중 고안의 상세한 설명에 기재된 텅스텐사를 합성수지사와 함께 편직하여 ' 부분과 일치하지 아니하여 명세서 기재요건에 위배되고, 텅스텐사를 직물지와 함께 편직하는 것은 실시가 불가능하므로 그 등록이 무효라는 주장을 새로이 하였다 ) .

다. 이 사건 제1항 고안은 텅스텐사 ( 2 ) 와 합성수지사가 함께 편직되면서 합성수지사가 바탕직물을 형성하고 텅스텐사 ( 2 ) 가 한 줄 건너 한 줄씩 일렬로 돌출되도록 세척부 ( 3 ) 를 형성하며 세척부 ( 3 ) 사이에 오목한 배수홈 ( 4 ) 이 형성되는 구성에 의하여 액상 오물이 내부의 심체인 스펀지 ( 6 ) 에 스며들지 않고 대부분 배수홈 ( 4 ) 고랑을 따라 하방으로 흘러 내려 외부로 배출되도록 하는 것인데 비하여, 비교대상고안 3은 은사와 합성 섬유사를 매 2본마다 상하 교차시켜 편직하여 일측에 조밀한 은사 ( 1 ) 은사 ( 1 ) 의 파일열을 형성하고 파일열 사이에 은사와 합성섬유사가 편환 ( loop ) 을 이루지 않고 망목 ( 網目 ) 상의 관통 세공 ( 貫通細孔 ) 인 홈 ( 4 ) 을 형성하는 구성에 의하여 액상 오물이 내부의 심체인 스펀지에 스며들도록 하는 것이므로, 이 사건 제1항 고안과 비교대상고안 3은 구성 및 작용효과가 상이하여 이 사건 제1항 고안의 신규성이 비교대상고안 3에 의하여 부정될 수 없다 .

3. Determination

A. Whether the Defendant is an interested party (1) An interested party who can file a petition for an invalidation trial on a utility model registration refers to a person who manufactures, sells, or manufactures or sells goods of the same kind as the registered draft in question, and has a direct and practical interest in the case where the existence of a right in a registered utility model is or is likely to be claimed against a right holder due to the existence of the right in question. However, it includes a person who wishes to realize future manufacture and sale (see Supreme Court Decision 81Hu59 delivered on March 27, 1984).

(2) In full view of the purport of the arguments in Gap evidence Nos. 14 and Eul evidence Nos. 2, it is acknowledged that the defendant registered his business on Jan. 10, 1997 with respect to the manufacturing and wholesale of goods, and that the value-added tax was paid in relation to the manufacturing and wholesale business from Jan. 1, 1997 to Dec. 31, 2005. According to the above facts, the defendant is a business operator who already manufactured and sold the number of goods belonging to the registered complaint of this case, or who wishes to be actually manufactured and sold at least, and thus, it is a legitimate interested person who is entitled to file a petition for a trial for invalidation of the registration of this case.

B. Article 8(4)1 of the former Utility Model Act (amended by Act No. 5577, Sep. 23, 1998; hereinafter the same) provides that claims for utility model registration must be supported by the detailed description of the device. Whether the claim is based on the level of technology as at the time of application for registration of a utility model registration is based on the person with average technical ability in the technical field related to the device. In light of the description’s perspective, the detailed description of the claim for registration and the detailed description of the device are consistent with each of the description, so that it can be clearly understood the technical composition, combination, and effect within the scope of the claim for registration, by which the detailed description of the claim does not coincide with each of the claims and the detailed description of the device can be understood entirely. 209 after the judgment of the Supreme Court (see, e.g., Supreme Court Decision 2001Du97579, Sept. 29, 202).

(2) However, the scope of the claim for the registration of the instant Claim No. 1 device is composed of two parts, “Tmbk Stex (2).

While the detailed description of the device in the description of the registration application of this case (No. 2-2 of the evidence No. 2-2 of this case) is written as follows: “The clean book protruding from the surface of the paper (7) of the paper (7) is written as letter, “The clean book is formed and protruding from the surface of the paper (7) of the paper (7).” On the other hand, the detailed description of the device in the description of the registration application of this case (No. 2-2 of the evidence No. 2-2 of this case is written as “The clean book is made up with the synthetic resin and protruding from the surface of the paper (7) of the paper (7).” In addition, the registration application of this case does not coincide with the detailed description of the device of the Gu.”

However, in light of the fact that there are two straights (knit fris) in the form of "Twelth cloth" used in the description of "Twelth 1" and "Twelth 2 in the form of "Twelth 2" and "Twelth 2 in the form of "Twelth 2" and "Twelth 2 in the form of "Twelth 1" and "Twelth 2 in the form of "Twelth 2" and "Twelth 2 in the form of "Twelth 19" and "Twelth 2 in the form of "Twelth 19" and "the 1st 2nd 2nd 2nd 2nd 1st 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 3.

(3) If so, the instant Claim 1 device does not coincide with the scope of the claim for registration and the content of the detailed description of the device, and thus, it constitutes a case in which the technical composition, combination, and action effect, which falls under the scope of the claim for registration, cannot be understood simply by the specification, and even if a person with ordinary knowledge in the pertinent technical field supplements the two composition of the instant Claim 1 device by the detailed description of the device, it cannot be said that it is not an omission in the description, even if the error in the description and the technical composition can be known through the detailed description of the device. Therefore, the instant Claim 1 device is not supported by the detailed description of the device, and thus, it was in violation of Article 9(4)1 of the former Utility Model Act.

C. Whether the design of Paragraph 1 of this case is new (1) or not as described in the specification, as described in the preceding paragraph. However, in accordance with the description described in the detailed description of the device, the part of "Tmex (2) and the part of "Tmex (7)" as stated in the scope of the claim for registration of Paragraph 1 of this case, shall be interpreted as "Tmex (2) along with synthetic resin as "Tmex (2)" in accordance with the description described in the detailed description of the device. We examine whether newness is recognized compared to the comparison proposal 3.

(2) First of all, the structure of Paragraph 1 of this case is the same as that of the manual "(2) with outer thousands (3) and with funch (2) inside the comparable column. In addition, the structure of Paragraph 1 of this case is made of synthetic fibres 3 of the comparable column(1) with the synthetic Textiles 1 and the composition of the file with funch (1) with funch (2) in light of the fact that "No. 3 of the comparable column is merely the same funch (2) or funch (1) with funch (2) with funch (2) with funch, and there is no difference in the description of the material of this case with funch(3) with funch(1) with funch(2) with funch(1) with funch(1) with funch(1) with funch(3) with funch(1) with funch(3) with funchinite.

Meanwhile, according to the evidence Nos. 5 and 17 evidence Nos. 3 in the comparison table Nos. 5 and 17, it is recognized that the specification of the comparison table Nos. 3 is common in that it provides twelves with twelves or synthetic resin companies, and it is common in that it provides twelves with twelves or synthetic resin companies, which are produced within the registration table Nos. 3 in the comparison table Nos. 3 does not have any objective and action effect to discharge garbage or oil on the Swelves surface without any twelvesinging it into a twelves surface. However, as seen above, the comparison table Nos. 1 and 3 in the comparison table No. 3 has any effect on the comparison plan No. 3, which is naturally identical to the comparison plan of this case, or can be substantially identical to the comparison plan No. 13 in this case.

(3) As to the claim, paragraph 1 of this case and paragraph 3 of the comparative table 2.c. as above, the plaintiffs asserted that the technical composition related to the outer,00 (7) code and its effects are different from each other. However, it cannot be seen that "it is protruding out in the specification of the registered complaint of this case only one set of synthetic resin (2) one," and the description of the plaintiffs' claim 3 in the specification of the comparative table 3 is not able to find the same way as the manufacturer and synthetic fiber, and the description of the comparative table 3 also in the comparative table 4, " shall form a digital line file and the digital line 3,000,000,0000,0000,0000,0000,0000,0000,000,000,000,000,000,000,000,000,00,000,00,00,00.

(4) Ultimately, the instant Claim No. 1 design and the comparable 3 design are substantially identical to the technical composition, purpose, and operational effect. As such, the instant Claim No. 1 design is new by the comparative 3.

D. Sub-committee

The defendant is a legitimate interested person who is entitled to file a petition for a registration invalidation trial on the registered complaint of this case, and the design of Paragraph 1 of this case falls under the lack of specification, and is not new by 3 of the comparable device publicly notified before the application is filed, and its registration shall be invalidated. Accordingly, the trial decision of this case which is identical with the above conclusion is justified.

4. Conclusion

The plaintiffs' claim of this case seeking the revocation of the part concerning the claim 1 of this case among the decision of this case is without merit, and it is dismissed. It is so decided as per Disposition.