개정 특허법상 손해배상 규정체계에 관한 소고 – 신설된 징벌적 손해배상 규정을 중심으로 –

In the era of the Fourth Industrial Revolution, the importance of intellectual property rights and the need for protection are growing. Securing knowledge assets and creating new value added using them are important issues directly related to the nation’s future and the protection of patents is at the core. The Patent Act protects the patent through the Injunction and the right to claim damages against patent infringement. However, due to the nature of the patent, it is very difficult to argue and prove in judging whether it is an infringement and calculating the amount of damages for an infringement. The Patent Act intends to construct a protection system that suits the characteristics of a patent by introducing various presumption regulations and imposing legal duties and the protection of patent rights has been strengthened through various revisions. The reality, however, has not only been minimal in compensation for infringement compared to foreign countries, but also very low in the outcome of the infringement cases. This has led to the spread of negative perception of patents at industrial sites, weakening the importance of patents. Thus, the vicious circle of patent infringement has continued, rather than focusing on technology development. Under these circumstances, the National Assembly passed a revised patent law that includes punitive damages after a long discussion at the end of 2018 and will be enforced in July 2019. The lawmakers are intending to strengthen the protection of intellectual property rights in consideration of the impor- tance of protecting high-tech technologies that are highly competitive in the industry and expect a virtuous cycle of expanding social utility and raise public awareness of the issue of infringement of intellectual property rights. The introduction of punitive damages under the revised patent law is expected to help prevent technology exploitation of small businesses, which are a major social issue, and strengthen the protection of patent holders’ rights. This paper examines the contents of the damage compensation system under the Korean Patent Act and the issues that were discussed in the process of introducing the new punitive damages regulation. It will also analyze the criteria for intentional infringement and the role of expert opinions that will be an issue in actual operation of the new regulations and cautions for system operation through analysis of overseas cases.