지식재산권의 침해와 부당이득

In the cases where intellectual property infringement occurs there are some special provisions in patent law which alleviate the burden of proof of the intellectual property owner for the claim of damages that arise from the tort cases, but there are no special provisions for the claims of restitution of unjust enrichment. If the intellectual property owner fails to establish the requirements of the tort or the statute of limitations of damages claim has already completed, the owner can sue for the restitution of unjust enrichment but the range of restitution is limited to licence fee. This study focuses on reviewing the overall theories and cases of unjust enrichment to find out the ground for proper range of restitution. Owners of intellectual property may receive an infringer’s operating profit, or compensation of a malicious beneficiary. However the owner himself has a burden of proof so it is actually difficult to claim for further damages. Even though the main purpose of unjust enrichment is not to sanction the wrongful act but to restitute or adjust the profit which the law does not admit, In order to make unjust enrichment supplementally function as efficient protection of intellectual property there is a need to have hermeneutical and legislative special actions to alleviate the burden of proof of the intellectual property owner for the claims against the malicious beneficiary.