특허권 침해 손해배상액의 선택산정 및 혼합산정 법리

This paper, in the case of patent damages calculation, examines whether the infringing products corresponding to the patentee’s real loss may be calculated under lost profit theory or infringer’s profit theory and then the remaining infringing products may be calculated under reasonable royalty theory. This paper coins as “mixed calculation” for the calculation method which utilizes two theories (lost profit plus reasonable royalty or infringer’s profit plus reasonable royalty). In order to solve the given issue, this paper comparatively analyzes relevant jurisprudence of the U.S.A., Japan, China and Europe, and under such analysis, finds that the U.S.A. and Japan permit mixed calculations, Europe allows only selective calculation, China, allowing only selective calculation, permits enhancement of calculated reasonable royalty. Based on such understanding, this paper proposes that: (1) to prevent excessive profit to the infringer and to fairly protect the patent right, mixed calculation must be allowed, (2) mixed calculation must be allowed without differentiating the patentee’s capacity from other reasons from which the patentee could not sell patented products, and (3) to specify said two points and to make Article 128(1) of the Korea Patent Act clearer and more concise, the provision must be amended.