미국 특허법상 증액손해배상제도의우리 특허법으로의 도입방안

Enhanced damages under the U.S. patent law originated from punitive damages under the Anglo-American law. Because the enhanced damages would augment damages estimated on a lost profit and reasonable royalty up to three times, that is a good solution to get rid of the Korea’s legal environments of undercompensation. Undercompensation can not properly compensate patent holders, impair the inventor’s motivation for the patent invention, and reduce the corporation’s investment for patent inventions. As a result, it hinders the Korea’s industrial development through the innovation aimed at by Korea patent law. Therefore, it is necessary to introduce the increased damages into the Korea patent law. If the enhanced damages will be adopted into the Korea patent law, it would strengthen the inventor’s motivation for patent inventions and increase the corporation’s investment, leading to an industrial development and economic development in Korea. Furthermore, the increased damages would punish willful patent offenders, and deter potential patent infringements. Ultimately, to introduce the enhanced damages to the Korean patent law is “good patent policies”. However, the provisions on a criminal sanction should be repealed so as not to violate the prohibition on double jeopardy clause stipulated in the Korea constitutional law when the enhanced damages introduced into the Korea patent law. In addition, the limit of enhancement of damages shall be restricted up to three times to eliminate any worries about the excessive enhancement of damages. Furthermore, the subject of the increased damages should be limited to willful infringements, and the discretion to increase the damages should be given to the Korean courts.