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HOME > Resources >
Abstract of Decision by IPT |
   
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Invention Publicly Known, Publicly Worked, and Disclosed in Distributed Publication |
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2010-05-14 |
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8418 |
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Invention Publicly Known, Publicly Worked, and Disclosed in Distributed Publication
I. Trial for Invalidation of Patent Registration No. 450874
Patent Court뭩 Decision No. 2006HEO9456 published on May 31, 2007
?finally decided
Supreme Court뭩 Decision No. 2007HU2667 published on Sep. 21, 2007
?dismissed without any further trial examination
A company which is not directly related to the prosecution purchased, installed and used a terminal clamping machine from the defendant. The company replaced the consumable components, such as an anvil, a cutter, among the constituent components, with the new components in the same shape as the old ones per about 2~3 months. However, the non-consumable components, such as a base plate, an anvil fixing block, a transfer plate and the like, had been used as they were in the original purchase state, without replacement or repair. The terminal clamping machine manufactured by the defendant had been installed and used in the factory of the company from December 11, 2001 which is before the filing of the application of the present invention. Therefore, the product is considered as having been easily recognized by many and unspecified people or carried out in such a situation. Accordingly, the terminal clamping machine is considered as being publicly known before the filing of the present invention.
II. Trial for Invalidation of Patent Registration No. 317059
Patent Court뭩 Decision No. 2006HEO7757 published on May 4, 2007
?finally decided
In Article 29 (1) (ii) of the Patent Law, the 몆ublication?means documents, drawings, pictures and the like which are reproduced by printing or other mechanical and/or chemical methods, for the purpose of publishing them. Since EUL Evidence No. 1 (cited invention 1) is an article to introduce a Netword system, disclosed in the internet website http://news.cnet.com, it cannot be considered as a publication. Therefore, cited invention 1 cannot be the invention disclosed in the publication distributed in the Republic of Korea or a foreign country before the filing the patent application of the present invention.
However, the article to introduce the Netword system in the aforementioned website describes as 밄y Courtney Macavinta and Tiare Rath Staff Writers, CNET News.com Story last modified August 1, 1997, 5:55 PM PT?under the title 밡etword enables you to surf the internet with keywords.? The final modification list time is indicated as about 1997.8.1.5:55. The above article is disclosed in the website (http://news.cnet.com) which reports news as a business, and the Korean press has the agreed business manner that the time of disclosing internet news is automatically input at the moment when the news is registered in the server. The Netword system, the first internet keyword system, publicly started in 1997. The Netword system was granted a patent in the U.S. The international application of the Netword system was filed, claiming the US filing date (November 7, 1995) as a priority date and it was published on May 29, 1997. Multimedia and Business, a publication of a Japanese diamond company, published on August 27, 1997, discloses an article introducing the Netword system. In light of the above points, it is true that the date and time of listing EUL Evidence No. 1 is 1997.8.1.5:55. Further, at that time when EUL Evidence No. 1 was disclosed in the internet, the internet is widely spread and there were several hundreds of information search engines. From experience, it is apparent that if people know an address (domain name) of internet protocol (IP) unless any special circumstance occurs, they relatively freely read the contents of documents disclosed in the internet in any place in the world. Therefore, internet users were able to freely read the aforementioned web document, by using the internet, in the Republic of Korea after August 1, 1997 when the article introducing the Netword system as EUL Evidence No. 1 was disclosed in the internet. Accordingly, cited invention 1 is considered as the invention publicly known in the Republic of Korea before the filing of the patent application of the present invention.
III. Trial for Invalidation of Utility Model Registration No. 265539
Patent Court뭩 Decision No. 2006HEO4147 published on Dec. 29, 2006
?finally decided
Supreme Court뭩 Decision No. 2007HU593 published on Apr. 12, 2007
?dismissed without any further trial examination
According to Article 5 (1) (i) of the Utility Model Law, even though a device filed in a utility model application has industrial applicability, if the device falls under devices publicly known or worked in the Republic of Korea before the filing of the utility model application, it shall be not be registered. The term 뱎ublicly known?means that the device is in the situation that it can be recognized by an unspecified third person who does not have a responsibility to keep secrecy by agreements or business practices regarding the device. The term 뱎ublicly worked?means that the device is used in the aforementioned situation.
In this case, considering that any special supplementation is not performed after a secondary automatic product, the secondary automatic product is acknowledged as being identical with the present registered device in terms of the technical idea and constitution. All of a deviser 밙AB? a defendant who is an owner of a registered right, a partner 밇UL 1?who agreed to do a business with 밙AB? a person 밇UL 2?who took the pictures to manufacture a catalogue, a plaintiff who is a manufacturer of a machine, and an employee 밇UL 3?of the manufacturer have the responsibility to keep secrecy of a device implicitly by partnership agreements or machine manufacturing agreements or by business practices until the device is filed as a utility model application. However, an owner 밄YOUNG?of an oil store purchased the automatic product on the condition of a test through a trial operation of the product. Considering this point, the owner 밄YOUNG?shall have the responsibility to keep the secrecy of the present registered device by an implicit contract or business practices until it is proved that the product has any specific defects through the trial operation. However, after it is confirmed that the product has no defects, the responsibility to keep the secrecy shall be regarded as being lapsed.
Therefore, after November 22, 2001 when 밄YOUNG?performed a second trial operation of a second automatic product supplementing the first automatic product, (s)he had no responsibility to keep the secrecy of the present registered device and were aware of the contents of the present registered device. After the trial operation, a person 밓UNG?who has no responsibility to keep the secrecy saw the secondary automatic product. Since the technical constitution of the present registered device is not so complicated, it is not difficult to know the technical idea thereof. Taking this point into consideration, it shall be regarded that 밓UNG?got to know the contents of the present registered device. Therefore, it is reasonable to consider that the present registered device had been publicly known before the filing of the utility model application. Even if 밄YOUNG?were to have the responsibility to keep the secrecy until the utility model application was filed, considering that the second trial operation was performed in the open place where ordinary people enter, the present registered device shall be considered as being publicly worked on November 22, 2001 when the second trial operation was performed.
IV. Trial for Invalidation of Utility Model Registration No. 318237
Patent Court뭩 Decision No. 2005HEO7613 published on Aug. 11, 2006
?finally decided
Supreme Court뭩 Decision No. 2006HU2677 published on Dec. 21, 2007
?dismissed without any further trial examination
A 몆ublicly known device?means that the contents of the dev
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