[판례평석] 특허법원 2016.12.9. 선고 2016허6890 디자인무효심판 심결에 대한 취소소송

A Case Study Regarding Patent Court Case No. 2016HUR6890 for Invalidation of Korean Design Patent No. 711474 Based on Ornamentality through Physical Eyes and Obviousness of Dobby Fabric

Ornamentality of a design should be determined through human physical eyes. Of course, ornamentality of a fabric design should be determined through human physical eyes. No one determines ornamentality of a fabric design through microscope or magnifying glass. If so, it is not necessary to file a microscope photo or a magnifying picture when the design application is filed, because the microscope photo or magnifying picture is not the same as the actual design of a fabric. However, in Korean Design Patent No. 711474, the Examiner determined ornamentality of the fabric design with the magnifying picture rather than the actual picture of the fabric design. In the invalidation proceeding, the panel also determined ornamentality of the fabric design with the magnifying picture. If the ornamentality of the fabric design should have been determined with the actual picture of the fabric design, the subject design patent shall be invalidated due to the similarity to US D459,093. Both Examiner and Invalidation Panel state that the subject design has ornamentality due to big bead pattern and small bead pattern in the fabric design. However, the big bead pattern and small bead pattern cannot be seen through human eyes in the actual picture of the fabric design, but it can be seen through human eyes in the magnifying picture. Nobody can say that the actual picture shows the big bead pattern and small bead pattern . Korean Design Examination Manual provides that a dobby pattern cannot be registered for patent because it lacks creativity (inventive step or non-obviousness). Dobby pattern or dobby fabric is manufactured by a bobby machine which is designed to produce various weaving structures by varying the structure of warp and weft. If a dobby pattern is patented, nobody can produce the dobby pattern by the dobby machine. Nonetheless, both Examiner and Invalidation Panel state that a dobby pattern can be patented if it has ornamentality by changing the structure of warp and weft. They do not understand what the dobby machine can produce and why Korean Design Examination Manual provides that a dobby pattern cannot be registered for patent.