미국특허침해소송에서 손해배상액 산정에 관한 최근 동향

This article is intended to highlight and review some key patent damages issues and some recent patent law decisions that grappled with them. United States patent law(35 USC §284) entitles patent patentees to an adequate compensation for losses resulting from patent infringement. The Court of Appeals for the Federal Circuit(CAFC) measure a patentee's loss as lost profits attributable to the infringement or as a reasonable royalty during the infringement period. Although Congress has statutorily provided for discretionary enhanced damages, a judicially created threshold requires courts to find willful infringement before awarding enhanced damages. Since 1983 Underwater Devices decision, courts have interpreted willful patent infringement as the breach of a "duty of due care" that the infringer owes to the patentee, thus equating willfulness with negligence. In its August 2007 Seagate decision, CAFC raised the standard for willful patent infringement from negligence to "objective recklessness." The new standard makes it harder to obtain enhanced damages from a patent infringer. In a decision eagerly anticipated by the patent community, CAFC in Lucent v. Gateway vacated the jury award of $358 million and closely scrutinized the district court's application of the hypothetical negotiations approach used to determine reasonable royalties. The Lucent v. Gateway court carefully scrutinized the evidentiary value of past licensing agreements used to estimate royalties under Georgia-Pacific and found the evidence lacking. This approach deviated from historic practice and represented the newest effort by the court to prevent excessively large jury awards. The Federal Circuit's rulings in Lucent and post-Lucent cases have improved the patent damages system and should help prevent excessively large jury awards in the future. Lucent v. Gateway represents a significant shift in the Federal Circuit's patent damages jurisprudence. In a series of opinions spanning from Lucent Technologies Inc. v. Gateway Inc. to Uniloc USA Inc. v.Microsoft Corp., CAFC has emphasized the need for greater rigor in presenting, challenging, and reviewing a claim for patent infringement damages. In the months following Uniloc v. Microsoft, a number of district courts have applied a strict articulation of the entire market value rule. And Uniloc v. Microsoft left no doubt that the ‘‘25 percent rule of thumb’’ as a tool for determining a reasonable royalty is dead. On Jan. 4, the U.S. Court of Appeals for the Federal Circuit held as a matter of Federal Circuit law that the 25 percent rule of thumb is a fundamentally flawed tool for determining a baseline royalty rate in a hypothetical negotiation. Since that rule was the basis of the damages calculations heard in the instant case, the court said that the district court erred by not excluding the testimony. After considering all the factors, we might reach such a conclusion that these recent trends in damages calculating for U.S. patent infringement lawsuits result from some reflective considerations about US CAFC’s pro-patent policy and the highly excessive damages.