The Supreme Court rejected an attempt made by an accused infringer-defendant to avoid execution of a preliminary injunction order in a patent infringement case by removing a component from the accused apparatus after the injunction order had been issued. The Court held that the overall identicalness of the object of execution (i.e., accused apparatus) is sufficient for the bailiff to execute the injunction order, without having to investigate the presence/absence of a component thereof (Supreme Court Decision No. 2025 Ma 6304 rendered on Sept. 29, 2025). The Court further admonished that the defendant’s non-infringement arguments go to the merits and therefore cannot be raised through an objection to the execution of an injunctive order.

▶Background 

This case arose from a patent dispute involving an apparatus for use in manufacturing insulation pipes. The plaintiff-patentee sought a preliminary injunction, alleging that the defendant was manufacturing and using a rolling apparatus for manufacturing insulation pipes, which infringes the plaintiff’s patent.

On June 20, 2024, the Seoul Central District Court granted the preliminary injunction, ordering the defendant to stop using the infringing apparatus for the production of pipes and to surrender the enjoined apparatus to the court execution officer. The schedule attached to the order listed an encoder as one of the apparatus’s components.

Shortly after the order had been issued, the defendant removed the encoder from the apparatus located at its factory in Daegu. When the execution officer arrived on July 4, 2024 to execute the order to attach the apparatus, the defendant filed an objection to execution, arguing that because the apparatus was without the essential component, i.e., the encoder, the apparatus no longer fell within the scope of the preliminary injunction and therefore was not subject to the execution thereof.

▶Lower Court Decisions

The sole judge at the Daegu District Court, hearing the defendant’s objection, accepted the defendant’s contention and set aside the execution. It reasoned that, when a patented invention is comprised of elements recited in the claims, the apparatus lacking an essential element thereof could not, in principle, be regarded as the patent-protected product or identical to the object described in the injunction order.

The sole judge’s decision was further affirmed by a panel of three judges at the Daegu District Court. 

▶Supreme Court Decision

On appeal, the Supreme Court reversed the panel decision and remanded the case, setting forth a legal standard for identifying the object of execution.

The Court held that, in identifying the object of execution, an execution officer should not be required to investigate the presence or absence of each and every component listed in the execution order. Rather, it suffices for the officer to verify and determine whether the apparatus is the same as the one that was in use at the time the preliminary injunction was issued, in light of the description and drawings in the injunction order, the apparatus’s structure, and the characteristics of the products manufactured by the apparatus as described in the order. In such context, absence of a component such as the “encoder” alone does not, by itself, vitiate the overall identity of the object of execution; and cannot stop the bailiff from executing the order.

Further, with respect to the defendant’s argument of non-infringement for the absence of a claim element, the Court stated that such substantive argument of non-infringement must be raised through (i) procedures governing the preliminary injunction (Civil Execution Act Articles 301 and 283), or (ii) procedures seeking revocation of the preliminary injunction due to changed circumstances (Civil Execution Act Articles 301 and 288); and that it cannot be raised as one of the grounds for “objection to execution,” which are confined to formal or procedural deficiencies in the execution process.