3배 배상제도의 도입과 특허침해소송에서의 손해배상액 산정 -고의 판단 기준을 중심으로

The National Assembly passed a bill, on December 7, 2018, on the enhanced damages compensation system on patent infringement, which was perceived as a mechanism that only existed in the U.S., and the same was introduced in Korea as of July 2019. This is assessed as a pivotal moment in the history of patent infringement litigation given that such system recognizes the amount of damages compensation triple the amount of actual damages (hereinafter “treble damages system”). Provided, being a relatively new regulatory system, issues are bound to arise that need to be resolved. For instance, inasmuch as the Patent Act only recently introduced the treble damages system (as opposed to other laws), it may bring about confusion, in practice, unless the standards for determining intentional patent infringement are established. As a matter of course, the Korean civil law does have such determination standards; however, the law recognizes compensation for damages without distinguishing intention and negligence, unlike the criminal law that applies strict requirements for establishing intent. Recognizing intent in civil liability cases has become a hot topic following the introduction of the treble damages system, which can be better understood through relevant judicial precedents of the U.S. Supreme Court. In examining the U.S. Supreme Court rulings on the Seagate Technology case and the Halo Electronics, Inc. vs. Pulse Electronics case, this paper was able to comprehend that gross negligence may fall under the scope of determining intentional patent infringement according to the perspective of Korean law. Given that Korea has a penal provision on patent infringement, the author is of the view that the existence of patent infringement may influence the determination of intentional patent infringement in a civil suit. That said, this paper concludes that it would accord with the legislative intent, language, structure, etc. of our legal system to reasonably calculate the amount of damages by adequately considering various elements pursuant to the Patent Act, whilst repealing the penal provision on patent infringement, as in the case of Taiwan, and easing the requirements for the establishment of patent infringement in civil cases seeking damages for compensation, as in the case of the U.S.