특허권 간접침해로 인한 손해배상

This article presents two perspectives on the issues concerning damage compensation for indirect infringement on patent. Unlike the U.S. and German patent laws, under which indirect infringement subsumes the supply of neutral or staple goods under certain subjective conditions, the Korean patent law limits the scope of indirect infringement to the supply of non-staple goods. Thus, it remains an open question whether the supplier of neutral or staple goods to a direct infringer may be held liable for aiding and abetting tort under the Civil Act. In addition to patent protection, another goal of the provision on indirect infringement under the Patent Act is to promote secure the legal status and transactional safety of third parties engaged in the manufacture and distribution of patent-related goods. As such, it is reasonable to deny supplementary tort liability of a supplier of neutral or staple goods. Under the legislative choice made in the Korean Patent Act, the supply of neutral or staple goods in the market as such is not a prohibited activity, hence, shall be deemed legitimate unless it entails an active solicitation of direct infringement. Germany and the U.S. is also in accord with this jurisprudence, under which the supply of goods not constituting an indirect infringement under the patent law is not held liable for aiding and abetting tort under the civil code. Meanwhile, depending on the subjective intent and the role played by the supplier of goods to a direct infringer, there is room for that third party to be held liable for co-conspiracy. Any involvement in aiding and abetting in the general sense, as opposed to in supply of goods, would leave the third party with no choice but to be held legally liable. As to damage compensation for infringement, it is necessary to review the applicable provisons and their legal effect by breaking them down into each type. There are two main categories of damage liability for indirect infringement: (a) several liability between the direct and indirect infringers; and (b) sole liability of the indirect infringer. Actual provisions applicable to the former is contingent upon whether the patentee exploits his/her invention in the market. The legal effect of the latter needs to be differentiated into cases in which the patentee and the indirect infringer competes around non-staple goods, on the one hand, and on the other, cases in which the patentee exploits the entire invention and the indirect infringer sells the non-staple goods. In setting the damages amount for indirect infringement, the application of Article 128 Paragraphs 1 and 3 of the Patent Act may leave room for an excessive compensation. However, this is something to be left up to the indirect infringer to resolve, by arguing and proving the grounds of exceptions under Article 128(2) of the Patent Act and the grounds of rebuttal of legal presumption of damages under Article 128(3) of the Patent Act. Such an interpretation is conducive to the legislative intent behind Article 128 of the Patent Act.