특허침해로 인한 손해배상액의 산정방법으로서 전체시장가치의 원칙과 할당원칙 — 미국 특허법에서의 법리를 중심으로 —

By the Garretson decision in 1884, the U.S. Supreme Court had adopted the entire market value rule as the calculation method of patent infringement damages. After the Garretson decision, the U.S. courts had developed the legal principles on the entire market value rule by adopting a variety of the requirements of that rule. But, since 2000s the entire market value rule was criticized because of patentees’ overcompensation. Through the Lucent Technologies decision in 2009, CAFC had adopted the apportionment rule as the calculation method of patent infringement damages. The apportionment rule had been adopted by the Seymour decision in 1853, but discarded through the patent law revision in 1946. The Lucent Technologies decision in 2009 had ruled that in complex multi-patent products, the apportionment rule rather than the entire market value rule should be applied as the calculation method of patent infringement damages if the infringed patent would drive the customer demand of that product is not proved. Therefore, the CAFC had the intention to solve patent holder’s overcompensation through the Lucent Technologies decision. The Republic of Korea courts has calculated penny-ante patent infringement damages as compared the U.S. courts. So, Korea court must adopt the entire market value rule into a case law to augment patent infringement damages. Increased damages in South Korea would intensify inventor’s incentives of a new invention and promote lots of companies’ investment. Finally, augmented damages would contribute the industrial development of the purpose of Korea’s patent law.