미국에서의 디자인특허 침해로 인한 손해액 산정방식의 특수성과 우리에게 주는 시사점 - 애플과 삼성의 소송을 중심으로 -

Now, a design right is drawing great attention than any other time due to the enormous damages acknowledged in a design patent infringement suit between Apple and Samsung in the U.S. Further, people are more interested in the remedy system of the U.S. design patent which enabled the patent owner to such enormous damages. This article studied on the peculiarity of the calculation of damages of a design patent infringement suit in the U.S. Also, it studied on what lessons we can learn from the above peculiarity. Specifically, the 35 U.S.C. §289 has some problems such as the issue of equity in comparison with other intellectual property system, the calculation of damages beyond a causal relationship, the possibility of severe punishment against innocent infringer. However, the article has its practical meaning in reality since the value of design in a product can’t be accurately evaluated. In Korean practice, the compensation of total profit in a design infringement suit need to be allowed in the situation where the design is the actual basis for consumer demand. Further, in calculating the contribution rate, our practice need to consider whether the design is the actual basis for consumer demand, whether the infringer is intentional, and how the degree of copy is.