[1] Criteria for determining the scope of the right or protection of a utility model right

[2] Whether (a) a device in comparison with a registered utility model falls under the scope of a right to the registered utility model in a case where only a part of the essential elements stated in the claim of the registered utility model exist (negative)

[1] The scope of the right or protection scope of a utility model right shall be determined by the matters described in the scope of a utility model application among many descriptions in the specification. However, in a case where the technical composition of a utility model is unknown or it is impossible to determine the technical scope even if the description alone is known or known, the technical scope or scope of the utility model shall be determined as a whole by supplementing other descriptions in the specification such as a detailed description of the device or a drawing. However, it is not permissible to expand the scope of the utility model application by other descriptions in the specification.

[2] In a case where a claim in a registered utility model consists of multiple elements, the technical engineer as a whole, which is an organic combination of each element, shall not be protected independently, and since each element is not protected independently, the (a) device compared to the registered utility model shall not fall under the scope of the right in the registered utility model, in principle, in a case where the (a) device in comparison with the registered utility model has only a part of the essential elements as set forth in the claim, and the remainder of the elements are lacking.

[1] Articles 8(4) and 29 (see current Article 9(4) of the former Utility Model Act (Amended by Act No. 5577, Sep. 23, 1998); Article 97 of the Patent Act / [2] Articles 8(4) (see current Article 9(4)), 29 (see current Article 42) of the former Utility Model Act (Amended by Act No. 5577, Sep. 23, 1998); Article 97 of the Patent Act

[1] Supreme Court Decision 94Hu1787 delivered on December 12, 1995 (Gong1996Sang, 395), Supreme Court Decision 95Hu1050 Delivered on December 6, 1996 (Gong1997Sang, 207), Supreme Court Decision 96Hu1040 Delivered on April 10, 1998 (Gong198Sang, 1361)

Plaintiff

Defendant

Patent Court Decision 98Heo2184 delivered on October 2, 1998

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

We examine the grounds of appeal.

1. Judgment on ground of appeal No. 1

A. According to Articles 8(4) and 29 of the former Utility Model Act (amended by Act No. 5577 of Sep. 23, 1998), and Article 97 of the Patent Act, the scope of protection of a registered utility model shall be determined by the matters specified in the scope of a utility model application, and at least one claim must be protected. The scope of a registered utility model application shall be specified only by the matters that are indispensable for the composition of the device. Since the scope of the right or the scope of protection of a utility model right shall be determined by the matters specified in the scope of a utility model application, in principle, if the technical composition of the utility model is not known or it is unknown even if it is not possible to determine the technical scope, the technical scope or scope of the entire utility model shall be determined by supplementing other parts specified in the specification, such as the detailed description of the device or drawings, within the scope of the claim for a utility model application, but it is not permissible to expand the scope of a utility model application by any other description in the specification (see, e.g., Supreme Court Decision 196Hu.

In addition, in a case where the claim of a registered utility model consists of multiple elements, it shall not be protected as a whole as an organic combination of each element, and each element shall not be independently protected. Thus, if (a) a device compared to a registered utility model has only a part of the essential elements specified in the claim of the registered utility model, and the remainder of the elements is lacking, in principle, the device is not within the scope of the right of the registered utility model.

B. According to the reasoning of the judgment below, the court below held as follows: ① a banner utility model (registration number omitted) (hereinafter referred to as the "registered device of this case") forms the front section of the banner (1) with the network hole (2), ② a combination of synthetic film advertising letters (9) with the network, ③ a purchase and formation of iron (4) with the upper side (3, 31) with the upper side (6,61) with the upper part (6, 61) with the top (6, 1) with the top (5, 51) with the top (5, 4) with the top (6, and the upper part) with the top (6, 51) with the aim of maintaining the support rod (5, 41) with the upper part of the above four components; ② the composition of the banner is to prevent the wind from spreading or destroying for a long time due to the wind formation of the network hole, ② the composition of the banner is not necessary for the reduction of the remainder of the target elements, and determined as follows.

C. Examining the records and the legal principles as seen above, the above recognition and determination by the court below are just and there is no error of law as pointed out as the first ground for appeal.

2. Judgment on ground of appeal No. 2

A. According to Articles 140(3), 141(1) and (2), and 142 of the Patent Act as applied mutatis mutandis to an adjudication on the actual use of a registered utility model under Article 35 of the former Utility Model Act, a person who intends to request a trial to confirm the scope of a utility model shall append the specification and drawings to (a) devices subject to an adjudication; where the specification and drawings attached thereto are unclear and it is impossible to specify the subject to an adjudication due to the uncertainty of the specification and drawings, the presiding administrative patent judge shall order the correction within a specified period, and where the correction is not made in spite of the order of correction, the presiding administrative patent judge shall reject the request by decision; where an unlawful request for a trial cannot be corrected due to an unlawful defect, the presiding administrative patent judge

B. According to the records, it is clear that the defendant's marking No. 1 as a general tent in the drawing of (a) device attached to the written appeal for the judgment on the confirmation of the passive scope of right to the registered device of this case as to banner does not indicate the body of banner body material, and (a) the subject matter of the device itself does not indicate that it is a general tent. Thus, the claim for the confirmation of the scope of right in this case is filed for the adjudication with a general tent device different from the registered device in this case, and thus, it cannot be deemed an unlawful claim with defects that cannot be corrected. Therefore, it is legitimate to reject the request for the adjudication in this trial, without the rejection by the written judgment, and to make the presiding judge clearly order the composition of the (a) device and make the decision on the revised (a) device, and it cannot be said that there is any error of law as alleged in the grounds for appeal No. 2.

3. All of the grounds for appeal cannot be accepted.

Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Seo-sung (Presiding Justice)