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| TITLE | Supreme Court Decision 2016Du58543 Decided October 17, 2019【Revocation of Disposition Invalidating Priority】 [full Text] |
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| Summary | |
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[1] Whether the conditions for, and the effect of, a priority claim shall be governed by the national law of Korea in a case where Korea is assigned as a designated State in an international application as prescribed in the Patent Cooperation Treaty (affirmative) Whether a filing date of an application regarding a part of an invention for which an application is filed later, identical to the invention for which an application is filed first, shall be considered to be the date when priority is claimed in a case where, applying a subsequent invention containing a technical idea of the invention applied earlier, an inventor claims priority thereof (affirmative) Whether an applicant may claim priority in a case where the applicant who files the application later succeeds to an “entitlement to a patent” at the time of the later application (affirmative) and whether a report on amendment of the patent applicant concerning an earlier application on this occasion ought to be completed (negative) [2] In the case where: (a) Party A and others succeeded to an entitlement to a patent regarding the first to fifth invention applied earlier by Party B; (b) Party C entered into a contract, which contains that Party C succeeds to an entitlement to file an international application stipulated in the Patent Cooperation Treaty from Party A and others, claiming priority based on the aforementioned inventions applied earlier, and then claimed priority based on the earlier-filed inventions when filing five PCT international applications to the China National Intellectual Property Administration (CNIPA); and (c) Party D and the others changed the patent applicant after succeeding to an entitlement to file later applications and submitted a domestic document containing the priority claim based on earlier applications in relation to subsequent applications to the Commissioner of the Korean Intellectual Property Office, but the Commissioner of the Korean Intellectual Property Office took an administrative measure invalidating each priority claim on the ground that the applicants at the time of filing the later applications are not identical to those of earlier applications which the priority claim is based on, the case holding that the priority claim shall not be deemed invalid by regarding the earlier applicants and the later applicants as distinct on the sole basis of the circumstance that Party D did not complete a report on amendment of the patent applicant at the time of filing subsequent applications in the PCT international application claiming priority based on domestic patent applications without clarifying whether Party C legitimately succeeded to the entitlement to claim priority |
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