Where the contents of the two registered utility model rights are identical or similar to the device, whether a trial to confirm the scope of rights of the owner of the registered utility model right after the owner of the registered utility model right is appropriate

The confirmation of the scope of the right of a utility model right shall be based on the registered utility model and shall confirm that any non-registered utility model falls actively or passively within the scope of the right of the registered utility model. Therefore, if the contents of the two registered utility model are identical or similar to those of the registered utility model, the owner of the registered utility model right may request a trial to confirm the scope of the right of the registered utility model right against

Articles 7(1), 19(1)1, and 25(1) of the Utility Model Act

Supreme Court Decision 73Hu47 delivered on November 23, 1976, Supreme Court Decision 83Hu105 Delivered on May 29, 1984

Samsung Electronic Industries Co., Ltd., Counsel for the defendant-appellant

[Defendant-Appellee] Patent Attorney Kang Sung-soo, Counsel for defendant-appellee

Korean Intellectual Property Trial Office No. 132 decided December 28, 1983

The original adjudication shall be reversed, and the case shall be remanded to the Korean Intellectual Property Trial Office.

ex officio, confirmation of the scope of the right of a utility model is confirmed that any non-registered utility model mainly belongs to or passive to the scope of the right of the registered utility model, so if the contents of the registered utility model are identical or similar to those of the registered utility model, the prior owner of the registered utility model can file a petition for adjudication to confirm the scope of the right of the registered utility model, and may not file a petition against the subsequent owner of the registered utility model right (see Supreme Court Decision 73Hu47, Nov. 23, 1976). (See Supreme Court Decision 73Hu47, Nov. 23, 1976) The return signal circuit, which is the first device, registered in the name of the claimant, is the most essential part constituting the body of the respondent, and the remainder of the registered utility model, which is the main part of the registered utility model, belongs to the (registration No. 1 omitted) of the registered utility model which is the object of a request for adjudication to confirm the scope of the registered utility model.

Thus, the appeal of this case is unlawful because it is decided that the registration (registration No. 1 omitted) of the respondent for a trial belongs to the scope of the right of the claimant (registration No. 2 omitted) utility model registration (registration No. 2 omitted) and the appeal of this case is filed on the premise that the appeal of this case is legitimate. The court below erred by misapprehending the legal principles as to the object of the adjudication to confirm the scope of right, which affected the conclusion of the judgment.

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 Kang Jin-young (Presiding Justice)