침해자 이익 법리에 준사무관리 법리의 적용을 위한 특허법 제128조 제4항의 개정방안

In the case that an infringer has made a huge profit through infringing someone else's patent right, the scope of restitution of the enrichment from a general illegal act or unjust enrichment is restricted to the loss that the patentee suffered. Therefore the infringer is allowed to withhold whole of the enrichment which is over the loss. Incidentally, such a result practically invites a potential licensee to infringe the patent right and is against justice and equity. Therefore to correct such unjustice, section 687(2) of the German Civil Act recognizes the pursuant management of affairs where an infringer is deprived of all his/her profit. Such German pursuant management of affairs puts intent as a prerequisites for establishment, transfers the damage that the victim suffered, and has two aspects (i.e. a restriction against the infringer, the suppression of an act of infringement). And in terms of applying mutatis mutandis to the effective provision of the pursuant management of affairs for effective realization of such aspects, the act falls under a special illegal act, distinct from general unjust enrichment or a general illegal act. Incidentally, the Korean Civil Act has no provision concerning pursuant management of affairs, and there are theoretical confrontations about whether to recognize the fact that there is no provision. But if not recognized, it is against a sense of equity that is commonly approved by the comparative law saying, "if you have intentionally sold what is owned by someone else, agreement about you being deprived of the profit from your infringement is prevention of an act of infringement and a restriction against the infringer." Therefore at least pursuant management of affairs must be recognized according to the theory of interpretation of the civil law. On the other hand, pursuant management of affairs according to the civil law assumes the infringer has committed the crime intentionally. But the legal principle of the pursuant management of affairs in the patent law takes the infringer's intent and negligence as requirements and therefore these two cases must be understood separately. And in the case of patent infringement, the latter one must be grasped as a type of legal principle of calculation of the profit of the infringer - one of the methods of calculation of damages through which the patentee can receive. Based on this, a problem can arise in the case of patent infringement - whether such a case recognizes application of the legal principle of the pursuant management of affairs or not. As for this, we, the authors, think that in the patent law, the legal principle of the pursuant management of affairs should be introduced initiatively for reasons (e.g. because the distinct characteristics of patent rights infringement should be considered; because today, when we are facing the fourth industrial revolution era, it is expected that it will be much more difficult to prove patent rights infringement). Naturally, in relation to this, section 128(4) of the Patent Act prescribes that the infringer's profit is presumed as the patentee's loss. However, if the infringer can prove the patentee’s limited production capacity, the presumption may be rebutted. And for weak patentees, such as individual inventors, SMEs, such proof would be easy. As a result, for weak patentees, section 128(4) is useless. Therefore section 128(4) of the Patent Act should be revised into a provision that regards the infringer's profits as the patentee's damage. By doing so, the legal principle of the pursuant management of affairs will be recognized in the Patent Act. I hope that through such revision, section 128(4) would be the most preferred one among three damages calculation methods by weak patentees.