[1] Method of determining the scope of the right of the utility model right or the actual scope of protection

[2] The meaning of a new and inventive step device under the Utility Model Act

[1] Articles 9(4) and 42 of the Utility Model Act, Article 97 of the Patent Act / [2] Article 5(2) of the Utility Model Act

[1] Supreme Court Decision 95Hu1050 delivered on December 6, 1996 (Gong1997Sang, 207) Supreme Court Decision 96Hu1040 Delivered on April 10, 1998 (Gong1998Sang, 1361) Supreme Court Decision 98Hu2351 Delivered on November 14, 200 (Gong2001Sang, 65), Supreme Court Decision 98Hu2856 Delivered on June 1, 2001 (Gong201Ha, 1539) / [2] Supreme Court Decision 94Hu982 Delivered on January 23, 1996 (Gong196Sang, 672), Supreme Court Decision 197Hu19839 delivered on November 28, 197, 197; Supreme Court Decision 98Hu29879 delivered on July 29, 197)

Plaintiff (Patent Attorney Cho Jae-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Jae-dong, Counsel for defendant-appellant)

Patent Court Decision 2003Heo5118 decided August 26, 2004

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In principle, the scope of the right of a utility model right or the actual scope of protection shall be determined by the matters described in the claims of a specification attached to an application for registration of a utility model: Provided, That in cases where the technical composition of a utility model is unknown or it is impossible to determine the technical scope even if the description alone is known, the supplement may be made by other descriptions of the specification. However, even if the extension of the scope of a utility model right is not permitted by other descriptions of the specification, and in cases where the technical scope is evident solely with the descriptions of the claims, the restriction on the scope of claims shall not be interpreted by other descriptions of the specification (see, e.g., Supreme Court Decisions 91Hu1908, Oct. 12, 1993; 96Hu1040, Apr. 10, 1998).

Examining the reasoning of the judgment below in light of the above legal principles, the court below held that the detailed explanation of the registered device (registration No. 65389) of this case (registration No. 65389) with the name "Woo-gu salt supply device" can only be interpreted by limiting the scope of the registered device of this case only in cases where Burrier and Burrier replys to the same direction as the whole. However, the detailed explanation of the registered device of this case and the scope of the request for registration can only be seen as crossing Burrier after the whole, but it does not include any description about the direction of the request for registration, and it does not make it difficult to understand the technical composition of the registered device of this case. Thus, the judgment of the court below is just and there is no error in the misapprehension of legal principles as to the interpretation of claims for utility model registration as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

Unlike the invention under the Patent Act, a practical device under the Utility Model Act has a new technological progress that enhances the utility value of the device by the shape, structure, or combination of goods because it does not require a high level of creativity. Thus, if a device is combined with a device for the previous publicly known art to have a new technical device, even if it is an additional structure, it shall be an industrial device corresponding to a new punishment on goods. Even if it is a combined device with a publicly known art, it shall be deemed an industrial device corresponding to a new one on goods. Even if it is a combined device with a publicly known art prior to the combination, it shall be deemed a new and non-obviousness device in a case where the effect of each technology is more enhanced than a simple one on the action effect prior to combination, and it is extremely difficult for the person concerned to implement it (see Supreme Court Decisions 96Hu1873, Nov. 28, 1997; 98Hu75, May 29, 2001).

In comparison with the comparison proposal at the time of the registration complaint in this case and the original adjudication, the court below judged that both devices are identical in terms of neglecting only the subject matter in its purpose, and they are salt supply devices that spreads salt. The registration complaint in this case can be classified into components 1 through 4 as stated in its reasoning. The comparison proposal in this case includes each element of the corresponding decision, and the minor differences asserted by the plaintiff are merely those not indicated in the detailed explanation on the registration complaint in this case or those that can easily change the scope of the registration request, and thus, the registration complaint in this case is identical in substance with the effect that the person with ordinary knowledge in this technology can easily find the salt from the comparison plan and thus, the registration is null and void. In light of the above legal principles and records, the judgment of the court below as above is just and there is no error in the misapprehension of legal principles as to the inventive step, as otherwise alleged in the ground of appeal.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jae-sik (Presiding Justice)