A. Criteria for determining similarity of a utility model

B. Criteria for determining the scope of rights of registered utility models

(c) The scope of rights of utility model rights applied and registered, including publicly notified reasons;

A. Under the Utility Model Act, the term “design” means the creation of a technical idea utilizing the law of nature (Article 3 of the Utility Model Act), which requires realization in a specific form such as the shape, structure, or combination of goods (Article 5(1) of the Utility Model Act). Thus, the object of protection under the Utility Model Act is a new device concerning the shape, structure, or combination of goods. Therefore, in determining whether a registered utility model is identical with or similar to another device, the technical device for each goods should be the subject of comparative review. However, even if a utility model is a utility model, it cannot be considered that it does not have any action effect such as its purpose of use, value of use, etc., and its effect should also be compared and determined.

B. In light of Article 8(2) of the Utility Model Act which provides that the scope of a request for registration should be specified in an application for registration of a registered utility model, the scope of the right should be determined by comparing and examining the outline of the device and the outline of the device compared thereto within that scope based on the scope of the request for registration.

C. Since the utility model right is granted to a new technical device, the scope of the right cannot be extended to the reasons for notification that can not be seen as an organic combination of new technical effects even if the application had been registered by the application.

(a) Article 5 (b) of the Utility Model Act;

Supreme Court Decision 86Hu222 delivered on December 9, 1986, 87Hu68 delivered on January 19, 1988, and 86Hu295 delivered on January 31, 1989, and 86Hu25 delivered on February 24, 1987, and 87Hu68 delivered on January 19, 1988, and 88Hu295 delivered on January 31, 198, and 78Hu28 delivered on September 30, 1980, and 83Hu58 delivered on May 9, 1984, and 81Hu160 delivered on July 22, 1986, and 85Hu50 delivered on July 22, 1986.

[Plaintiff-Appellant] Patent Attorney Kim Sung-sung

Attorney Park Jong-won, Counsel for the respondent-appellant

Korean Intellectual Property Trial Office No. 129 decided Apr. 30, 1988

The original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Trial Office.

As to the ground of appeal by claimant,

1. The term "design Act" means the creation of a technical idea utilizing the law of nature (Article 3 of the Utility Model Act) that needs to be realized in a specific form, such as the shape, structure, or combination of goods (Article 5(1) of the Utility Model Act). Therefore, in determining whether a registered utility model is identical with or similar to a different device, it is reasonable to consider the technical public proposal regarding the punishment for goods such as the shape, structure, and association of each goods as the object of comparison. However, even if a utility model is a utility model, it is difficult to think that it does not have any action effect such as its purpose of use, value of use, etc., so in determining whether it is identical or similar, the effect of the utility model should also be compared and judged (Article 5(1) of the Utility Model Act; Article 86Hu25, Feb. 24, 1987; Article 86Hu25, Aug. 19, 198); Article 198 of the Utility Model Act

In addition, in light of the provisions of Article 8(2) of the Utility Model Act that stipulates the scope of the request for registration in the application for registration of a registered utility model, the summary of the device and the summary of the device compared thereto should be compared and judged within the scope of the request for registration, based on the scope of the request for registration.

According to the records, 1) as well as 3) as 5 (In the case of a refluoring studs and bricks connected to a chimney 261 and 1) as well as 5 (in the case of a refluoring studs and 3) as a refluoring studs and 5 (in the case of a refluoring studs and 4) as well as a refluoring studs and 5 (in the case of a refluoring studs and 5) as a refluoring studs and 5 (in the case of a refluoring studs and 1) as well as a refluoring studs and 5 (in the case of a refluoring studs and 2) as a refluoring studs and 3) as well as a refluoring studs and 2) as a refluoring machine.

Nevertheless, in judging whether or not the two devices are identical or similar to the two devices, the original decision judged that the two devices are different from the other devices without considering the technical composition such as the shape, structure and combination, or the professional engineer's appearance, and from the point of view that the two devices are different from the other devices in the technical composition of the two devices, and then, compared only to the other devices in the technical composition of the two devices, the two devices are identical in their technical composition and their effects are identical. Thus, even if the two devices are different, the (a) devices cannot escape the scope of the right to the device, and thus, it cannot be said that there is no error of incomplete deliberation or error in the comparison and inspection of the two devices in the scope of the right to the utility model in the determination or the utility model.

2. Since a utility model right is granted to a new technical device, the utility model right shall be granted only to a new professional engineer, even if there is an application including the reason for public announcement, and even if the registration was based on the application, and the utility model right shall not be extended to the ground for public announcement that cannot be seen as an organic combination with a new technical effect (see, e.g., Supreme Court Decision 78Hu28, Sept. 30, 1980; Supreme Court Decision 83Hu58, May 9, 1984; Supreme Court Decision 81Hu60, Jul. 10, 1984; Supreme Court Decision 85Hu50, Jul. 22, 1986; etc.).

According to the Utility Model Gazette No. 4 (Utility Model Gazette), this device is designed to remove the heat storage room (10), which is installed between the boiler (1) and the stack (2) before the application for the registration of the device, and connects the stack (3), 3 (3) to the low surface of the burning tank (16). The string (16) of the burning (4) of the device is to remove the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the string of the 2015 (Utility Model Gazette) and to remove the string of the string of the string of the string of the 2014 (2) of the string of the string of the string of the string of the 2014).

The court below determined that the method of collecting and removing garbage among the devices of this case is not the same as the exhaustive storage and removal means within the quoted height, and that the technical composition and operation effects of the device cannot be seen as the same, and that the device of this case cannot escape the scope of the right to the device, by misunderstanding the legal principles on the scope of the right to the utility model right, thereby affecting the result of the decision. The arguments are reasonable.

Therefore, the original adjudication is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Young-young (Presiding Justice)