Where the contents of two registered utility model rights are identical or similar to the device, the method of claiming the right of the owner of the registered utility model rights.

A confirmation of the scope of the right of a utility model right shall be made based on the registered utility model, because any unregistered utility model falls actively or passively within the scope of the right of the registered utility model, and if the contents of the registered utility model are identical or similar to those of the registered utility model, the owner of the registered utility model right may file a request for a confirmation of the scope of the right against the owner of the registered utility model right after the former.

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

Supreme Court Decision 73Hu47 delivered on November 23, 1976, 83Hu107 Delivered on May 15, 1984, and 84Hu5 Delivered on May 28, 1985

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

[Defendant-Appellee] Patent Attorney Kang Sung-chul et al., Counsel for defendant-appellee

Korean Intellectual Property Office No. 165 decided on December 28, 1983

The decision of the court below is reversed, and the case is remanded to the Korean Intellectual Property 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 registrant may file a petition for adjudication to the owner of the registered utility model right after the establishment of the utility model right, and may not file a petition for adjudication to confirm the scope of the right (see, e.g., Supreme Court Decision 73Hu47, Nov. 23, 1976; Supreme Court Decision 83Hu107, May 15, 1984; 84Hu107, May 28, 1985; 84Hu5, May 28, 1985). If a claimant seeks confirmation of the scope of the right of the registered utility model (registration No. 1 omitted) which is the most essential part of the registered utility model and the remaining part of the registered utility model (registration No. 2) which is the object of the request for adjudication, the above.

Despite this, the court below erred in the misapprehension of legal principles as to the subject of a trial to confirm the scope of right, which the court below tried and judged on the premise that the petition for a trial in this case is legitimate, which affected the trial decision, and thus, the original trial decision cannot be reversed at this point.

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 judges.

Justices Jeong Jong-tae (Presiding Justice)