지식재산권의 행사와 부당이득

Intellectual property owner can receive a payment from the other side of the party by exercising the exclusive right such as lawsuit or outside of the lawsuit procedure ban intrusion or damage claim. This can cause the other side enormous loss like business shut down even though it can turn out afterwards that the owner no longer had the right because of a retroactive destruction of the patent by the confirmation of invalidity decree. In this case it is important to compensate the losses of that party and protect their benefit in reparation of damages or restitution of the payment to accomplish the goal of intellectual property institution which is to develop the industry. In this writing there is a overall review of a requirements for unjust enrichment claim and the range of a restitution by going over the steps of exercising the intellectual property rights from the pre-lawsuit level to the enforcement. It is difficult for the other side of the party to collect the loss from the intellectual property owner because the damaged party has a burden of proof and it is hard to set the concept of benefit or the range of the restitution when the owner already exercised the claim of ban intrusion. Every law of intellectual property has a clause that alleviate the burden of proof of the intellectual property owner for the claim of damages. Therefore, it seems to fit the principle of equity to also alleviate the burden of proof for other side of the party regarding the claim of restitution of unjust enrichment, since the law system has a provision to alleviate burden of proof for the owner of intellectual property.