미국 특허법에서의 특허표시(patent marking)에 따른 손해배상액 산정기간의 변화

Section 287(a) of the U.S. Patent Act prescribes a unique patent marking system, which has just a few corresponding systems in other countries. In order to receive damages compensation from an infringer, a patentee shall give either an actual notice through sending a warning letter or filing a lawsuit complaint or a constructive notice through patent marking on any patented articles, and he cannot receive damages compensation against infringements happened before such a notice. Therefore, a patentee who sells patented articles in the United States must undertake due care for patent marking. This paper summarizes the U.S. patent marking system as the followings. First, if a patentee proclaims infringement of a product claim, patent marking is required, except that such requirement is not necessary when no tangible items exist. Second, patent marking consists of a word of “Patent” or “Pat.” with patent number(s), or a virtual marking is possible through which an internet site is linked. Third, if it is impractical to mark on the relevant patented articles, marking on packaging is allowed. Fourth, patent marking must be conducted consistently and substantially, except that a minor portion of articles could be exempted under the de minimus exception rule. Fifth, patent marking is not required when infringement of only method claims are proclaimed. The (Korean) companies which export patented articles to the U.S. market must apprehend the unique U.S. patent marking system and must avoid disadvantage on damages calculation.