손해배상액 증액제도의 특허법에의 도입 필요성

This paper emphasizes the necessity to introduce enhanced damages system into Korean patent law. In so doing, this paper first discusses special characteristics of patent right. Because the patent right is (1) subject to easy potential infringements, (2) difficult for a patentee to prove damages, it needs more consideration for proper protection than normal real rights. After further analyzing raised objections against the enhanced damages system, this paper concludes that the enhanced damages system (1) can be consistent with existing damages jurisprudence, (2) can effectively deter future infringements, (3) does not necessarily deter free innovative activities. Especially it is emphasized that Korean jurisprudence has already introduced enhanced damages system in some legal fields, such as the Subcontract Act, the Railroad Business Act, the Copyright Act and even the Patent Act itself. Therefore the enhanced damages system is not a totally new one to the Korean jurisprudence. If the enhanced damages system is being introduced into the Korean Patent Act, (1) willful infringements will certainly be diminished, (2) R&D activities and further economic development will be promoted, (3) patent markets will be vitalized. It is authors’ hope that through the introduction of enhanced damages system, the dignity of Korean inventors may be respected.