중소·중견 기업 기술탈취 방지를 위한 손해배상소송의 실효성 확보방안

In dealing with the issue of IP(including the patent(s), Trade Secret, Know-how but not limited to these type of intangible rights) usurpation by the market dominant companies or such companies with inarguably higher bargaining power, Korean Fair Trade Commission and Small and Medium Business Administration, that is Bureau of the Small and Medium sized Enterprise(SME), have been working as a police to monitor, admonish and punish any sort of unfair business practices of this type. However their performance is not that very noticeable and its role is also very limited up to now. Korea’s first treble damage act was introduced for the protection of the Subcontractors to this effect. However no case has been reported yet. Now is the time to come up with a fundamental solution to technology usurpation. The problem of technology usurpation starts with the fact the problem is being dealt with while technology itself, the object of the problem, is hardly discussed. technology of SME is largely divided into one category protected by Patent and another category covered by Trade secret. If Patent and Trade secret system operates properly, above-mentioned technology usurpation would not have been as problematic as the one at the moment. with regard to this, the underlying problem of Patent and Trade secret system of Korea lies in the statutory structure where an actual damage could barely be compensated to right holders. Patent litigations usually take such a long time, 10 years sometimes, in conjunction with lots of costs associated with the actions. However the amount of final damage awarded to patent holders by Korean courts is far lower than that of United States. This suggests that any actions brought by the Small and Medium Sized Company will not be an effective tool for the protection of the Intellectual Properties of the Small and Medium Sized Companies when their IP is infringed or allegedly infringed whatever case it may be. In some cases, they may be threatened that their contract with the fringer will be terminated once their action would be made, which makes it difficult for SMEs to pursue any legal actions such as filing litigations against infringer(s). Therefore, the usage of the technologies of the Small and Medium Sized Company not paying any compensation in essence has to be regulated by the Patent Act. In order for the Patent Act to work for this purpose, the economic analysis done in this article has to be contemplated and Punitive Damage or Enhanced Damage mechanism is to be seriously discussed to solve the IP usurpation problem we have especially between the large and the small and medium sized company.