Criteria for determining newness and creativity, which are the requirements for design registration.

In order to obtain a design registration, creativity as well as originality. Even though each shape and pattern constituting the design falls under the open space, if they are combined so that they may create a new decorations and aesthetic sense, and if they are deemed to be an intelligent device to such an extent that they could not be easily created, the design may be considered to be a device with a new decorations and creativity, but otherwise, if a combination of individual shape and shape does not cause a new decorations or value as a technical creation, it may not be subject to a design registration due to lack of originality and creativity.

Article 5 (2) of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990) (see current Article 5 (2))

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No.1978, 10615) (Law No.10615, Apr. 10, 1984) (Gong1984, 886) 91Hu1014, Mar. 31, 1992 (Gong192, 1430)

Attorney Park Tae-chul et al., Counsel for the defendant-appellant-appellant

Escopic type

Patent Attorney Micromix Co., Ltd., Counsel for the plaintiff-appellant-appellee

Korean Intellectual Property Office Decision 92 No. 92 dated July 22, 1994

The original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Office.

The grounds of appeal by the claimant (to the extent of supplement in case of supplemental appellate brief by the attorney Song Young-sik, which was submitted after the expiration of the period) are examined.

1. According to the reasoning of the original decision, the court below determined that the registered design of this case is not a design to the extent that the registered design of this case can be easily created by a person who has ordinary skill in the field to which the design belongs, and the registered design of this case is not a design to the extent that it can be easily created by a person who has ordinary skill in the field to which the design belongs, even though the registered design of this case is similar in comparison with the cited design (1).

2. However, Article 5 (1) and (2) of the former Design Act (amended by Act No. 4208 of Jan. 13, 1990) which applies to this case under Article 4 of the Addenda of the Design Act (amended by Act No. 4208 of Jan. 13, 1990), which applies to this case, is new in order to obtain design registration, as well as creative. If each type, shape, and shape constituting a design belong to the public domain, if they are combined, causing new decorations and aesthetic sense and are considered to be an intelligent device to the extent that they cannot be easily created, the Speaker may be deemed to be a device with new and creativeness, but otherwise, if a combination of individual shape, shape, and shape does not create a new aesthetic sense or value as a technical creation, it may not be subject to design registration due to lack of new and creativeness (see, e.g., Supreme Court Decision 83Hu559, Apr. 10, 1984).

In comparison between the registered design of this case and the quoted designs published domestically and overseas prior to the filing of the application, the registered design of this case is deemed to have been extremely similar to the corresponding parts of the quotation (1) as stated in the evidence No. 5, and the shape of the quotation (1) as stated in the evidence No. 6, No. 7, and the shape of the tride portion, which is the remainder, is extremely similar to the quoted design (2), and (3). The registered design of this case is merely a simple combination of parts of the two publicly known designs, and it is difficult to recognize creativity because it is not deemed to have been an intelligent device to the extent that it causes new aesthetic sense or is not easily created.

Therefore, the registered design of this case is a design that can be easily created by a person with ordinary knowledge in the field to which the chairperson belongs, from among the quotations published in publications distributed domestically and abroad before the application, but the court below judged that the design is a creative design that could be easily created by a person with ordinary knowledge in the field to which the chairperson belongs. The court below erred by misapprehending the legal principles of the design law and failing to exhaust all necessary deliberations, which affected the result of the trial decision. Therefore, the argument on this point is with merit.

3. Therefore, the original adjudication is reversed, and the case is remanded to the Korean Intellectual Property Trial Office. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Chocheon-sung (Presiding Justice)