特許權侵害로 인한 損害賠償額의 算定方法

The assessment of the amount of compensation for damages in patent infringement

Summary: Patent infringement is a tort under Article 750 of the Civil Act. Article 128 the Patent Act also has a provision on proving and estimating damage, on the assump- tion that a patentee or exclusive licensee can claim compen- sation for damages from an infringer. For the application of Article 750 of the Civil Act, intention or negligence, illegal patent infringement, damages and cause are needed. The damages include all kinds damages as long as they are reasonably related to infringement. However, it is very diffi- cult for a patentee to prove the actual amount of damages, because he cannot easily access the evidence. For this reason, Article 128 of the Patent Act provides that the amount of damages can be calculated by multiplying the number of transferred articles by the profit per unit of the articles that the patentee or exclusive licensee might have sold in the absence of said infringement, that the profits gained by the infringer as a result of the infringement shall be presumed to be the amount of damage suffered by the patentee or exclu- sive licensee, and that the pecuniary amount which he would normally be entitled to receive for the working of the patented invention may be claimed as the amount of damage suffered by the patentee. As a result, a patentee can be com- pensated without proof of the actual amount of damages and cause. In addition, according to the Patent Act, Article 128, Paragraph 5, where the court recognizes that the nature of the facts of the case makes it difficult to provide evidence proving the amount of damage that has occurred, the court may determine a reasonable amount on the basis of an examination of the evidence and on a review of all the argu- ments, notwithstanding paragraphs ⑴ through ⑷. It is being expected how the court will apply the article in real cases in the future.