The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the grounds of appeal as to whether an advertisement constitutes a false or exaggerated advertisement in relation to the use of a patented invention, the so-called “false or exaggerated advertisement” prohibited under Article 3(1)1 and Article 3(2) of the former Enforcement Decree of the Act on Fair Labeling and Advertising (amended by Presidential Decree No. 24081, Sept. 5, 2012) refers to an advertisement that is likely to disrupt fair trade order by deceiving or misleading consumers by informing of false facts or by misleading them of relevant facts. In such cases, whether an advertisement is likely to deceive or mislead consumers should be objectively determined based on the total fluoral increase, provided that general consumers with ordinary care receive the relevant advertisement.

(2) The court has a duty to resume the pleading and continue the hearing in a case where the parties concerned have not been given the opportunity to submit the assertion due to the circumstances that make it difficult for them to be held responsible prior to the closing of pleading, and where the subject matter of proof of pleading constitutes the facts requiring proof that can depend on the outcome of the judgment, such as the case where the parties concerned have not been given the opportunity to submit the assertion, and where the judgment against them without giving the opportunity to submit the assertion is contrary to the procedural justice pursued by the Civil Procedure Act, the court has a duty to resume the pleading and continue the hearing.

(see, e.g., Supreme Court Decision 2010Da20532, Oct. 28, 2010). According to the reasoning of the lower judgment, the lower court comprehensively based on the adopted evidence and recognized the facts as indicated in its reasoning, and subsequently, indicated in the claim scope of the instant patent invention.