Date of
Judgment:
24.01.1980
Issuing
Authority:
Supreme Court
Level of
the Issuing Authority: Final Instance
Type of
Procedure:
Judicial (Administrative)
Subject
Matter: Other
Main
text of the judgment (decision):
1. The present final appeal
shall be dismissed.
2. Appellant shall bear the cost of the final appeal.
Reasons:
The reasons of the final appeal by the
attorneys of the final appeal, ●●●● and●●●●
In the lawsuit against trial decision
for invalidation of the utility model registration, determination on
lawfulness/unlawfulness of the decision by finding presence of an invalidation
cause in comparison with a device described in a publication not
heard/determined in the procedure of the trial is not allowed, and this is the
purpose of the court precedent of this court (see Supreme Court 1967 (Gyo-Tsu) 28
Judgment of the Grand Bench on March 10, 1976/Minshu vol. 30, No. 2, page 79).
However, in determining
lawfulness/unlawfulness of the decision by finding the presence of the
invalidation cause in comparison with a device described in a publication
heard/determined in the procedure of the trial, even if the common general technical
knowledge at the time of filing of the application of the utility model registration
of a person having ordinary knowledge in the technical field to which the aforementioned
device belongs (hereinafter, referred to as a "person ordinarily skilled in
the art") is found on the basis of the material not appearing in the
procedure of the trial, and the presence of the invalidation cause is found
thereby after clarifying the meaning of the device, that cannot be considered
to be determination on lawfulness/unlawfulness of the decision by finding the
presence of the invalidation cause in comparison with the device described in
the publication not heard/determined in the procedure of the trial.
When considering the above for this
case, it is obvious in view of the judgment in prior instance that the court of
prior instance found the common general technical knowledge of a person
ordinarily skilled in the art at the time of filing of the aforementioned
utility model registration by Exhibit Otsu 1-2 in the statement, whereby the
present device was found to disclose the art of sealed packaging in the present
device in the third cited example heard/determined in the procedures of the trial,
and supported the determination in the decision that the present device could have
been conceived of extremely easily from the first to third cited examples and thus,
there is no unlawfulness in the statement in the judgment in prior instance,
and the gist cannot be employed.
Therefore, the judgment shall be
rendered as in the main text unanimously by all the judges pursuant to Article
7 of the Administrative Case Litigation Act and Articles 401, 95, and 89 of the
Code of Civil Procedure.
(This translation is
provisional and subject to revision.)