특허침해에 대한 손해배상액으로서 실시료 상당액

This article studies the reasonable royalties as damages for patent infringements. Korea patent law Article 128 is for calculating damages in patent infringements. Article 128 (3) provides for patent holder may claim usual amount of a royalty for use of the patented invention for damages. The resonable royalty of this paragraph is considered for non-exclusive licensing. In the case, non-manufacturing patent owners who can't prove the pecuniary loss are only possible to claim royalties for non-exclusive licensing. As a result, the case the agreements for legal contracts had occurred is same to the case illegal infringements occurred. Considering the possibility the patent infringements are not found and the cost patent owners should pay for suits, this may effect as an incentive for patent infringements. Under these circumstances, it is necessary to discuss the meaning and the need for revision of Korea Patent Law Article 128 (3). Therefore, this paper introduces regulations and cases in Korea and other country, America, Japan, etc.. In Japan, the word 'usual' was deleted in the paragraph of Article 102 (3) for Japan patent law at 1998 Patent Law Reform. The paragraph had corresponded to Korea Patent Law Article 128 (3). Due to the deletion, it became clear that reasonable royalties are not limited for non-exclusive licensing and reasonable royalties damages can be calculated more amount than non-exclusive royalties considering individual and specific situations. 35 U.S.C. 284 provides for "damages adequate to compensate for the infringement but in no event less than a reasonable royalty". Courts interpreting this provision have divided patent damages into two groups- lost profits, available to patent owners who would have made sales in the absence of infringements, and reasonable royalties, a fallback remedy for every else. Traditionally, patentees want to prove lost profits because only that measure captures the monopoly value of excluding competitors from the market. As the statutory language suggests, reasonable royalties exist as a floor or backstop for those who cannot prove that they have lost profits as a result of infringement. The rationale is that an infringed patent is valuable and could be licensed for a fee even by patent owners who don’t employ the patent in the marketplace. US courts determine the reasonable royalties by established royalties and Georgia Pacific factors. With reference to the above-mentioned, this paper proposes the word 'usual' should deleted in Korea patent law Article 128 (3) and considering individual and specific facts damages should be calculated no event less than a royalty for non-exclusive licensing.