[1] Where some of the claims for a registered utility model are clearly expressed, or where a clerical error exists, the scope of the right cannot be denied

[2] The method of comparison with the composition stated in the claims for utility model registration when determining the inventive step of the challenged device subject to a request for a trial for confirmation of the scope of right

[1] Article 33 of the Utility Model Act, Article 135 (1) of the Patent Act / [2] Article 4 (2) of the Utility Model Act

[1] Supreme Court Decision 200Hu235 Decided June 14, 2002, Supreme Court Decision 2003Hu2515 Decided November 24, 2005 / [2] Supreme Court Decision 89Hu568 Decided October 16, 1990 (Gong190, 2276) Supreme Court Decision 9Hu710 Decided October 30, 2001 (Gong201Ha, 2618)

datte Co., Ltd. (Patent Attorney Park Jae-sik et al., Counsel for the defendant-appellant-appellant)

Defendant 1 and one other (Patent Attorney Lee Jae-soo, Counsel for the defendant-appellant)

Patent Court Decision 2006Heo11404 Decided December 5, 2007

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

1. Regarding ground of appeal No. 1

Even if a part of the claim(s) of a registered utility model is clearly expressed or is written in writing, if a person with ordinary knowledge in the technical field can clearly understand the device in light of the detailed description, drawings, etc., and it is obvious that the device is a clerical error, the scope of the right to the registered utility model cannot be denied (see Supreme Court Decisions 2000Hu235, Jun. 14, 2002; 2003Hu2515, Nov. 24, 2005, etc.).

In light of the above legal principles and the records, the term "power transmission means" in the registered device (registration No. 340635) of this case (registration No. 340635) is obvious that it is a clerical error in the "power transfer means" when considering the detailed description, drawings, etc. of the device, and thus, it cannot be denied the scope of the right to the device of paragraphs 1 and 3 of this case. The judgment of the court below to the same purport is correct, and there are no errors in the misapprehension of legal principles as to the interpretation of the scope of the right to the registered utility model, as otherwise alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

In light of the records, the court below's decision is just and acceptable, and it did not err in the misapprehension of legal principles as to the determination of the scope of right of a registered utility model, contrary to the allegations in the grounds of appeal. It did not err in the misapprehension of legal principles as to the determination of the scope of right of a registered utility model, as otherwise alleged in the grounds of appeal.

3. As to grounds of appeal Nos. 3 and 4

When determining whether a device subject to a request for a trial for confirmation of the scope of a right is made only with an known one, or if a person having ordinary knowledge in the art can easily implement it from an known one, it shall not be understood as limited to the composition corresponding to the composition stated in the registered utility model claim(s). It shall be determined whether a claimant has a whole composition of a device subject to a specific confirmation(s) and constitutes it (see Supreme Court Decisions 89Hu568, Oct. 16, 1990; 99Hu710, Oct. 30, 2001, etc.).

In light of the above legal principles and the records, it is proper that the court below determined that the proposal for confirmation included in the composition of the "connection means" includes prior art 1, 2, and 3 of the comparative art as stated in the judgment of the court below, and that such prior art does not constitute a device that can be easily implemented from the prior art because there is no composition of the "Linking means" within the scope of the prior art as stated in the judgment of the court below. There is no error in the misapprehension of legal principles as to the understanding of the technical composition of the subject matter of confirmation and the determination of whether the free-to-work technology is available.

4. Conclusion

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.

Justices Jeon Soo-ahn (Presiding Justice)