특허권 침해제품의 국내 생산 후 수출에 대한 손해배상액 산정

This paper produced the following jurisprudence regarding damages calculation against patent infringing products which were manufactured domestically and thereafter exported to foreign countries. Firstly, the exported infringing products consist of some sold domestically and others sold abroad, each different calculation method may be applied respectively. Secondly, to decide location of sale, several factors, such as places of contract (meeting of minds), delivery, negotiation, payment would be as a whole considered. Thirdly, lost profit theory or infringer’s profit theory would not be (excluding in special situations) applied to those products, manufacture domestically sold abroad. For those products, causal connection between infringement and harm would not be recognized. Regarding this jurisprudence, in the C ann o n v. Alph a ch e m case, the Seoul High Court and the Korea Supreme Court both applied infringer’s profit theory to all exported products. Because some of the products might have been sold abroad, applying infringer’s profit theory to all of them was not appropriate. Fourthly, it is allowed to apply reasonable royalty theory to those products, manufacture domestically sold abroad. Therefore, in the C ann o n v. Alph a ch e m case, the plaintiff should have requested to apply reasonable royalty theory to them. Anyway, the plaintiff, Cannon gained more compensation from the wrong request and the wrong holdings of the courts.