미국 특허법에서의 가상적인 협상에 의한 합리적인 실시료의 산정방법 - 개정 특허법 제128조 제5항 시행과 관련하여 -

Article 128 paragraph 5 of South Korea patent law, which went into effect on July 9, 2019, changed the “amount of money normally received” under the old law to “amount of money reasonably received.” This reflects the change in our Supreme Court’s legal perception of that. Under the old patent law, South Korea Supreme Court had ruled that reasonable royalty can be calculated through various circumstantial evidence, which is quite similar to the position that U.S. courts is able to calculate reasonable royalty on the basis of 15 circumstantial evidence from Georgia-Pacific Factors. After all, the amendment made in paragraph 5 of Article 128 is merely change in the language of the law’s provision in a perfunctory manner. Under U.S. patent law, a hypothetical negotiation method means that of calculating the royalty that could have been agreed upon if patentees and infringers had negotiated voluntarily by setting up a situation in which they initiated licensing negotiations for the use of the patent right at the beginning of patent infringement. In 1970, the Georgia-Pacific decision had adopted “Georgia- Pacific Factors,” which correspond to 15 circumstantial evidence. In South Korea, the amount of damages caused by patent infringement has been calculated in small amounts. Therefore, South Korea patent law needs to adopt a hypothetical negotiation method as a method of calculating reasonable royalty to promote industrial development through innovation that the patent law is aiming at.