우리 특허법상 증액손해배상제도의 도입과 실무적 운영방안 - 미국 특허법상 증액손해배상제도와 비교를 중심으로 -

Enhanced damages has been introduced into South Korea patent law, and is set to take effect on July 9, 2019. According to the Article 128⑧⑨ of the patent law, compensatory damages can be enhanced “up to 3 times” based on “willful infringement” by taking into account “the eight circumstances”. Considering that enhanced damages under South Korea patent law was established by reference to enhanced damages under U.S. patent law, the way in which enhanced damages is operated in U.S. could help the practice of enhanced damages in South Korea. First, the meaning of “willfulness” needs to be interpreted differently from that of other laws in order to ensure the effectiveness of enhanced damages. Next, our fact-finding court will be able to determine whether or not there is a willful infringement and the extent of the enhancement by estimating the degree of culpability or egregiousness inherent in infringer's action, based on the circumstances provided by South Korea patent law andother circumstances. Moreover, just like the practice in U.S. lawyer's written opinion in connection with the showing of willful infringement will be used as important circumstances in South Korea. Enhanced damages under South Korea patent law could contribute to an industrial development through innovation by creating a legal environment in which more higher damages for patent infringement can be calculated. Therefore, it is a “good policy” to introduce enhanced damages into South Korea patent law.