In a case where an application for a new law application was filed pursuant to Article 5 of the Addenda to the application of the amended Utility Model Act ( September 23, 1998), and notification of non-existence of new law was received because the contents of the application were not identical to the original application for a new law application, whether the initial application for a new law application may be deemed withdrawn pursuant to the aforementioned Addenda

Article 5 of the Addenda to the Utility Model Act (amended by Act No. 6412 of Feb. 3, 2001) provides that an application to apply the previous Act may be promptly registered by the new Act at the applicant’s option. In addition, an application to apply the new Act shall be deemed to have been filed at the time of filing of an amendment pursuant to Article 15(1) of the former Utility Model Act to the extent that the substance of the application is not changed. In addition, an application to apply the new Act shall be deemed to have been filed at the time of filing of the new application to apply the new Act without being identical to that of the initial application to the application to apply the previous Act. Since an application to apply the new Act, an amendment to apply the new Act shall be deemed to have been withdrawn at the time of filing of the new application to apply the previous Utility Model Act without being deemed to have been filed at the time of filing of the new application to have been amended by Article 5(1) of the former Utility Model Act, the new application to apply the new Act shall be deemed to have been withdrawn at the date of application to apply the new Act.

Articles 8(1) and (5) and 15(1) of the former Utility Model Act (amended by Act No. 6412 of Feb. 3, 2001), Article 5(1) and (3) of the Addenda (amended by Act No. 6412 of Sep. 23, 1998)

Plaintiff (Patent Attorney Kim Won-sik, Counsel for plaintiff-appellant)

Scenic Burial Development Inc.

October 5, 2007

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The decision made by the Intellectual Property Tribunal on November 29, 2006 on the case No. 2006Ma21 shall be revoked.

1. Basic facts

A. The registered complaint of this case

(a) The name of the device: The body for the storage of the remains of a charnel house in a wedding; and

(2) Date of application/registration date/registration number: March 2, 200 / May 10, 200 / No. 189934 of 200

(3) The owner of the utility model right: the plaintiff

(4) Details of the device

The draft of the instant registration is related to the dynasty for the dynasty of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of

B. Compared Gossis

(1) Compared design 1 (application for utility model registration filed on April 26, 199, and evidence No. 4-2)

The term "a structure for the storage of relic remains applicable to a charnel grave" is a characteristic of "a structure for the storage of relic remains, which is applied to a charnel grave," which is characterized by the following: multiple remains shall be buried in the space of the main body in which the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the persons.

(2) Comparison Draft 2 (Patent Technology Institute published in May 6, 1999, Patent Marart, Eul Nos. 2 and 3, and Major Drawings published in May 6, 199 are as shown in Appendix 2)

As to “the structure of storing the remains of a relic which is applied to a charnel tomb,” there is an explanation that it is identical to the shape of a funeral, embling them in an outer shape, and has the characteristics of reflecting it without corrosioning with synthetic resin, and that it is a device to inurn the remains of a relic in an open space by installing 12 partitions in the ground, which is a general tomb, installed inside the body of a tomb, and cutting the body of a charnel in an inner space, and cutting the body of a charnel in an open space.

C. Details of the instant trial decision

On January 3, 2006, the Defendant filed a petition for a registration invalidation trial against the Plaintiff on the ground that the registered petition of this case is identical to the comparable petition No. 1, which was first filed, and is contrary to the earlier application No. 2, etc. compared to the comparable petition No. 2, etc.

On November 29, 2006, the Korean Intellectual Property Trial and Appeal Board reviewed it as No. 2006 party 21, and rendered a trial decision citing the above appeal on the ground that the registered complaint in this case was registered in violation of the provisions of the earlier application principle and was null and void.

[Evidence] Evidence Nos. 1 through 3, Eul evidence Nos. 2, 3, Eul evidence No. 4-1, 2, the non-party witness, and the purport of the whole pleadings

2. Determination on the legitimacy of the instant trial decision

A. Whether the provision of earlier application on the instant registered petition violates the foregoing provision

(1) The plaintiff's assertion

As the application for new law application under Article 5 of the Addenda of the former Utility Model Act (hereinafter “former Utility Model Act”) amended by Act No. 5577 on September 23, 1998 for the application of the former Utility Model Act (hereinafter “former Utility Model Act”) was withdrawn pursuant to paragraph (3) of the same Article, the proposal for registration of this case did not have the status of the earlier application on the proposal for registration of this case. Thus, the proposal for registration of this case does not violate the provisions of the earlier application.

(2) Whether the comparable design 1 was withdrawn

Article 5 of the Addenda to the former Utility Model Act provides for special exceptions to the application of the former utility model registration, and Article 5 (1) of the same Act provides that "This Act shall apply to a utility model application which is pending in the Korean Intellectual Property Office at the time of entry into force of this Act (excluding an application which is pending in the Korean Intellectual Property Office at the time of entry into force of this Act) if there is an applicant's request, while Article 5 (3) of the same Act provides that "an application for a utility model registration to which this Act applies under paragraph (1) shall be deemed to have been filed on the date of the initial application, and the initial application for a utility model registration shall be deemed to have been withdrawn on the date of application under paragraph (1) shall be deemed to have been filed on the date of application, and the initial application for a utility model registration shall be deemed to have been withdrawn on the date of application.

On April 26, 199, the Plaintiff filed an application for comparison of 1 on April 26, 199, and filed an application for new application under Article 5 of the Addenda of the former Utility Model Act (hereinafter “new application”). On October 5, 200, the application for new application of the new law was registered as the 207087 of the Utility Model Gazette (hereinafter “new application”). The application for new application of the new law was not included in the scope of claims 1 of the comparison of 20. The application for new application of the new law was not established as 6. The application for new application for new application of the new law to the effect that the new application for new application of the new law was not included in the scope of claims 1 of the comparison of 30. The application for new application for new application of the new law is not established as 0. The application for new application for new application for new application of the new law to the extent that the new application for new application for the new application for the new law is not recognized as 1.0. The application for new application for new application for new application for the new application for new law.

According to the above facts, the plaintiff's application for new application for utility model registration is not recognized and the application date of new application is recognized as the date of application for new application without being retroactively applied to the first application date of the comparative application. Meanwhile, Article 5 of the Addenda of the former Utility Model Act allows an applicant to promptly register an application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application shall be deemed to have no effect on the first application date of new application for new application for new application for new application for new application without changing the gist of the Utility Model Act. In light of the fact that the new application for new application for new application for utility model registration is deemed to have been filed after the amendment for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new application for new, new application for new application for new application for new application.

Therefore, since the application for the new law applied to the comparative subject proposal 1 is valid, the comparative subject proposal 1 shall be deemed to have been withdrawn on June 30, 200, which is the date of application pursuant to Article 5 (3) of the Addenda of the former Utility Model Act.

(3) Determination on the instant registered appeal

According to the provisions of Article 8(1) and (5) of the former Utility Model Act, where two or more applications for utility model registration for the same device are filed on different dates, only the applicant who filed the first application may obtain the utility model registration for the device, and where the first application is withdrawn, the applicant shall be deemed not to have existed from the beginning and shall not have the status of the earlier application.

As to the instant case, since the public health unit and the comparative subject proposal 1 were withdrawn due to the application for the application of the new law and they became unable to have the status of the earlier application, the instant registered complaint cannot be deemed to have been registered in violation of the earlier application principle, which is the provision of Article 8(1) of the former Utility Model Act, compared to the comparative subject proposal 1.

B. Whether the registered appeal of this case is new and inventive step

(1) Claim 1 device of this case

(a)technology and purpose;

The instant Claim 1 is related to the storage structure of the remains of a sealed charnel house. The purpose of the instant Claim 1 is to ensure the convenience of worship by easily exposing the remains of a deceased person who intends to be buried in the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body, thereby

The comparative design 2, compared to this, is related to the structure of the burial remains, which is applied to a charnel tomb, and its purpose is to provide a charnel frame for the burial burial graveyard, which makes it possible to efficiently utilize and save costs and costs of the national land and conveniently inurnment (No. 2 and No. 3).

The purpose of both devices is to preserve the remains, which are applied to the charnels, and the technical field is the same as that of the case, and to facilitate the convenience of worship by planting the charnels with planting them as inurning. However, unlike the device of Paragraph 1 of this case, the purpose of paragraph 2 of this case is not to clarify the support of the internships, or to enhance the installation strength, but it is not to say that such purpose is the basic technical task and purpose pursued by a person with ordinary knowledge in the technical field to which the device pertains (hereinafter referred to as “ordinary technician”). Thus, there is no specificity in its purpose.

(B) Guide

The technical composition based on the claim(s) of the instant claim(s) is set up in the above hangar (2) and in the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the Republic of Korea (hereinafter “Composition 1”) (hereinafter “the body of the body of the body of the body of the body of the body of the body of the body of the Republic of Korea”) (hereinafter “the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body.

(1) Composition 1

The composition 1 of the instant Claim 1 design is a structure of the main body (1) and the subssssssemy-type hangar (2). This is corresponding to the composition of the “semy-type cosemy-insemy-type resemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-insemy-in.”

(2) Composition 2

Composition 2 is composed of “Alleys (11) and table table table (15).” This is corresponding to “a composition in which 12 partitions are filled up by an empty space every empty space.” Composition 2 is composed of “a structure in which garments are filled up by 12 partitions in the inner part of the base of the base of the base of the base of the base of the base of the survey.” Composition 2 is installed with partitions (10) composed of partitions (11) and the body table (3) composed of remains garments (11) installed, and the table table (11) composed of the base of the base of the 2nd of the base of the base of the base of the comparison (2nd of the base of the base of the base of the base of the survey (2nd of the base of the base of the building) and the body of the base of the body of the base of the building of the base of the building of the base of the building of the base of the building of the building of the body of the building of the body of the building of the body.

(3) Composition three

The composition 3 is composed of materials of main body(1), internship(3) and tables(15) as synthetic resin. This is the same as the comparable device 2, which is used as synthetic resin materials and reflectedly without corrosion.

(c)the effects of action;

The device of Paragraph 1 of this case serves as a soil pole for the body at the time of the installation of a charnel with the center of the body and the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of

However, the effect of stabilizing the whole of charnels by putting the center inside the booms into soil in the process of installing a balddy, which is a colon in the inside of the general burial, even in the case of the 2nd-type of the comparative high-tech for the purpose of cutting down the baldembs. However, even though the balp has not been clearly initiated on the balp erosion, the balp is a technology within the scope of the creation of an ordinary technician as seen in balp as seen in 2 of the composition, and its function effect is also expected.

Therefore, it cannot be said that the instant Claim 1 design has an unforeseeable significant action effect from the comparative device 2.

(D) Arrangement of the result of preparation

The instant Claim 1 design pertains to the storage structure of remains, and is to ensure the stability of the entire charnel house and to have the ability to support the internship, by installing a mid-to-date factory for the collection of soil and a tables.

As seen above, among the technical composition of the instant Claim No. 1 device, the composition of “theme B B” cannot be deemed as substantially identical to the corresponding structure of the comparative high-level design 2, and thus, newness is not denied. However, this is extremely easy for an ordinary technician to derive from comparative high-level design 2, and its effect can also be easily predicted, and the remaining technical composition is substantially the same as the corresponding structure of the comparative high-level design 2.

Therefore, although the design of Paragraph 1 of this case is not denied newness, the nonobviousness of the design of this case is denied as it can be easily designed by a person of ordinary skill in accordance with the comparative idea 2.

(2) Paragraph 2 of this case

The instant Claim 2 design is the subordinate claim of the instant Claim 1 device, which is limited to “the structure consisting of at least one or at least two kinds of 1 or more of the table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table table.

However, in the case of the instant Claim 2, it is merely a widely known official technique in the machinery sector, which is installed in the floor that supports the whole body and meets the whole body, and it is merely a type of rolling, a wheel-type table table (15a), a sprink-type table (15b), or a sprink-type table table (15c) of the instant Claim 2 device. Thus, the instant Claim 2 device is merely an addition or a limited degree by a person with ordinary skills, and it cannot be said that there is technical difficulty. The effect of the instant Claim 2 that supports the sprink-type table cannot be said to be significant to the extent that it can be predicted that it falls under the unique function of sphering.

Therefore, the nonobviousness of the instant Claim 2 is denied, as it can be easily designed by a person with ordinary skills according to comparative art No. 2.

(c) Conclusion

The registered device of this case is invalid since the nonobviousness of utility model registration is denied by comparative design 2. Thus, the trial decision of this case, which stated the same conclusion, is justifiable (the trial decision of this case is registered in violation of the provisions of the earlier application principle and is null and void, and the decision of this case differs from the decision of this case, but is identical to the conclusion that the registration of the registered device of this case is null and void)

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges' seats (Presiding Judge)