:::Law Office of Yoolhyun:::
 

글제목 Supreme Court en banc Decision 2009Hu2234 Decided January 19, 2012[Invalidation of Registration (Patent)]*
작성일 2013-10-10 (목) 14:13
출처 대법원
ㆍ조회: 143  
[Main Issues and Holdings]

[1] Time point for the determination of whether a trial request is illegitimate pursuant to the principle against the double jeopardy of Article 163 of the former Patent Act (=the time of requesting a trial)

[2] In case where Gap corporation requested a registration invalidation trial against Eul, etc. about the patent invention of "Native language service system of Internet address" based on lack of progressiveness and the issue is whether it violates the principle of the double jeopardy of Article 163 of the former Patent Act in relation to the fact that Byung corporation requested a registration invalidation trial of patent invention against Eul, etc., which was finalized with dismissal decision, the case holding that Gap's trial request does not violate the above principle



[Summary of Decision]

[1] The Supreme Court used to interpret that the principle against the double jeopardy (hereinafter, "the principle") under Article 163 of the former Patent Act (amended by Act No. 6411 of Feb. 3, 2001, the same applies hereinafter) is applied with the criterion of not the trial request time, but the decision time. Under such Supreme Court precedents, where multiple trial requests were filed concerning the identical patent on the basis of the same fact and evidence, if other trial decision is finalized and registered while a revocation lawsuit against a certain trial decision("the first decision") is under progress, and the court revokes the first decision since such request has merit, the Korean Intellectual Property Tribunal has no choice but to dismiss the trial request pursuant to the principle when the trial request is to be decided again under Article 189 (1) and (2) of the Patent Act. However, it can infringe excessively the citizen's constitutionally guaranteed right to request trial since the procedure under progress for a trial requester's own interest becomes retrospectively illegitimate by fortuitous circumstance like the registration of finalized related decision. Such result is irrational since the court judgment revoking Korean Intellectual Property Tribunal's decision becomes meaningless. Further, Article 163 of the former Patent Act defines a personal scope for no double jeopardy as "anybody." Since no one including the finalized and registered decision party or successor can request the same trial based on the same fact and evidence, to expand its application scope without reason restricts the citizen's exercise of the right to request trial. Article 163 of the former Patent Act provides "can not request the trial," and it is only interpreted that once trial decision is finalized and registered, a new trial request is not allowed based on the same fact and evidence of preceding trial request. Nonetheless, if the trial request becomes retrospectively illegitimate due to the principle where other trial's decision was not yet finalized and registered at the trial request, but finalized and registered at the time of decision, such interpretation is not rational. Thus, the issue of whether the trial request is illegitimate under the principle should be decided as of the trial request time. The principle does not render the trial request illegitimate where the other trial decision with the same fact and evidence is finalized and registered after the trial request.

[2] In case where Gap corporation requested a registration invalidation trial against Eul, etc. about the patent invention of "Native language service system of Internet address" based on lack of progressiveness (hereinafter "trial request of this case," and the issue is whether it violates the principle of the double jeopardy (hereinafter, "the principle") of Article 163 of the former Patent Act (amended by Act No. 6411 of Feb. 3, 2001, hereinafter the same applies) in relation to the fact that Byung corporation requested a registration invalidation trial of patent invention against Eul, etc. which was finalized with dismissal decision (hereinafter "finalized decision outside of this case"), the case held that the trial request of this case does not violate the principle of Article 163 of the former Patent Act on the ground that the finalized decision outside of this case was not finalized and registered at the time of trial request of this case, although Byung corporation's trial request of this case and finalized decision outside of this case constitutes a trial request with "the same fact and evidence" of Article 163 of the former Patent Act.
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