미국에서의 지식재산권 침해에 대한 금지명령 판단시 회복할 수 없는 손해의 추정

Injunction is the strongest remedy of intellectual property owner for intellectual property infringement cases. Traditionally, courts automatically issued injunction when the infringement was shown and thus, injunction has particularly been the negotiation tool for intellectual property holders. However, this remedy had caused some problems, such as patent troll, and this made the Supreme Court refuse the general test, and then adopt the test as principle of equity. Now, courts must utilize the four factor test of principle of equity to decide whether the injunction could be issued. According to this, the plaintiff has to prove the four factors: (1) irreparable harm; (2) inadequacy to compensate such injury; (3) balance of hardship; (4) public interests, to get the injunction relief. Although most scholars and courts accepted the means of test, there is still dispute about the presumption of irreparable harm, which is the first factor. Some argue that the irreparable harm should be presumed because patent grants exclusive right. But, others assert that the presumption of irreparable harm should not be allowed because patent infringement can be calculable, reimbursed by money. In addition, the Supreme Court in eBay and the Circuit in Bosch support this point. Therefore, the presumption of irreparable harm should be denied. This problem has also been caused in copyright and trademark infringement suits. In general, the principle of patent can be applied to copyright cases more easily because of the same origin, which is based on the Constitution. Thus, it is appropriate that the irreparable harm for copyright infringement is not presumed. In contrast, since trademark is inherently different with patent and it is difficult to calculate the fame and goodwill, some scholars argue that the irreparable harm should be presumed. But, trademark infringement can be calculated by monetary value and moreover, more reasonable conclusion can be led when courts judge the presumption by discretion. Therefore, it is also proper to reject the presumption in trademark infringement suits. It is very significant to decide whether the presumption can be accepted for the balance between patent owner’s interest and public interest. This can indirectly lead to establish the scope of intellectual property rights.