Whether a trial invalidating a registered device violates the principle of trust on the sole ground that the registered device has been registered by overcoming the cited proposal with a certificate of reference in the examination stage before the utility model registration (negative)

As the registered device is similar to the cited device, more than 10 years have passed since the date of registration, and the reason that the registered device overcomes the cited device, which was a reference certificate at the pre-examination stage of the utility model registration, and registered cannot be deemed to violate the principle of trust on the sole ground that the judgment invalidating the registered device is against the doctrine of trust.

Article 25 of the former Utility Model Act (amended by Act No. 4209 of January 13, 1990), Article 1 of the Civil Procedure Act

Patent Attorney Lee Jae-hoon et al., Counsel for the defendant-appellant

Patent Attorney Hwang Byung-do et al., Counsel for the defendant-appellant

Korean Intellectual Property Office's Appeal Trial Office 1990. 31 October 31, 1990

The appeal is dismissed.

The costs of appeal shall be borne by the respondent.

As to the ground of appeal by the respondent

1. The original trial decision is similar to the technical composition, goods to be used, their operational effects, and materials comprising the goods, in preparation for the main design and the cited design. However, a little difference between the shape and structure cannot be deemed to be a special difference in the aspect of the structure or operation effect due to the detailed difference in the actual circumstances. The original trial decision is merely a simple difference to the extent that it can easily be easily designed if the person has ordinary knowledge in the art. This decision constitutes a ground for invalidation of the utility model registration under Articles 19(1)1 and 5(2) of the former Utility Model Act (amended by Act No. 3893 of Dec. 31, 1986). The original decision of the court below is justified, and it cannot be deemed that there is a misapprehension of the legal principles as to the newness and inventive step in the original case, such as the theory of right and wrong.

2. The invalidation trial system of utility model registration shall retroactively lose the utility model right until the beginning of the establishment of the utility model right where the utility model right which was effective falls under the grounds for invalidation under the Utility Model Act. As such, as long as the design falls under the grounds for invalidation of the utility model registration, the invalidation trial system of utility model registration shall be invalidated by a trial, and ten years have already passed since the date of registration of the design, and even if the design was overcoming the above cited proposal which was used as a reference certificate at the pre-examination stage of the utility model registration and registered, the adjudication invalidating the design on the ground of the above cited proposal shall not be deemed to violate the principle of trust. The arguments are without merit.

Therefore, the appeal is dismissed and all 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 Yoon Young-young (Presiding Justice) Park Young-dong Kim Jong-ho