미국 특허법상 특허침해로 인한 합리적인 실시료의 산정방법 ― 확립된 실시료 산정방법, 분석적인 산정방법, 25% 실시료율 산정방법을 중심으로 ―

From the middle of the 19th century, a established royalty method had been used. The method is explicitly referred to in Georgian-Pacific Factors No.1 circumstantial evidence, which is one of legal principles of the hypothetical negotiation method. Therefore, patentees can demonstrate that the royalty they received from licensees through the license contract is a reasonable royalty based on the method. An analytical method determines the amount of the net profit generally acquired by an infringer minus the usual net profit expected to be obtained by an infringer due to patent infringement, or the standard net profit recognized in the industry, as a reasonable royalty. Since the reasonable royalty calculated by the analytical method is generally calculated at a higher price than that calculated by the hypothetical method, the analytical method may be a solution to the criticism that there is a concern that damages based on hypothetical negotiation method may not be calculated to the extent that the patentee is properly protected. The 25% percent method was thrown away by the CAFC on the grounds that it is an arbitrary method. Currently, the amount of damages caused by patent infringement is calculated in small amounts in South Korea, which is widely criticized as hindering industrial development through innovation that our patent law is aiming at. In this respect, it is a “good policy” to introduce an analytical calculation method into the Korea patent law.