2014년 5월 6일 화요일

A precedent about the inventiveness of the patent


The Supreme Court's Precedent has been published which states that the inventiveness of the patent already registered should not be judged in the trial for confirmation of the scope of right to define an application range of patent right.

On March 20th, 2014, the supreme court decision confirmed the original trial that decided against a demandant with respect to the confirmation suit of patent right scope, in which company “A” specialized in manufacturing a special equipment vehicle (SEV) filed a suit revoking the decision of the Intellectual Property Tribunal (IPT) that determined its designing of feed transportation vehicle is similar with Kim’s registration utility model.

With respect to the claim raised by company “A”, in which “Kim’s utility model is considered as such patent that should be invalid due to the lack of the inventiveness, thus the scope of patent right as itself is not recognized”, the justice department decided as follows: “once a patent is registered, it cannot be judged premised on the invalidity in other processes, unless the invalidity trial is processed”.

Also, it was specified that “the trial for confirmation of the scope of right is such a process as to confirm whether the confirmation subject invention belongs to a scope where the effects of patent right extends” and accordingly, “judging premised on the invalidity of patent as itself at this process, is beyond the object of the system thus, the function of the patent nullity trial may be weakened.

In January 2012, Kim filed the trial for confirmation of the scope of right while asserting the company “A”’s designing of feed return carrier for use of the feed transporting vehicle corresponds to the scope of his utility model registered in 2004.

As the Intellectual Property Tribunal (IPT) decides in a way to cite Kim’s assertion, the company “A” filed a law suit against Kim.

The company “A” argued that “any person skilled in the art can easily devise Kim’s utility model” and that “the patent should be invalid due to the lack of the inventiveness, thus the scope of right as itself is not recognized”.

The patent court rejected the argument raised by company “A”, indicating that “even if there is no inventiveness at the trial for confirmation of the scope of right, the scope of right thereof cannot be denied”.

Therefore, Kim’s utility model was recognized and they judged that company “A”, which manufactures and delivers the feed transporting vehicle having similar structure and principle therewith, has violated the patent right scope of Kim’s.

The Supreme Court noted in connection with the subject judgment, that “the manner has been clarified in which the inventiveness cannot be examined considering the object and gist of the trial system for confirmation of the scope of right” and that “there is a certain significance upon which the precedent has been unified where the positive and negative coexisted.