특허침해로 인한 일실이익과 합리적인 실시료의 혼합산정 방법 – 특허법 제128조 제2항 개정과 관련하여 -

Article 128 Paragraph 2 of the revised Patent Act, which is scheduled to take effect on December 10, 2020, stipulates the mixed method of calculating lost profit and reasonable royalty by patent Infringement. The mixed method means the method of calculating lost profit for a portion of damages and a reasonable royalty for another portion of the damages. There were legal scholars who argued that the mixed method should be introduced into the patent law in South Korea, and the United States and Japan have already established it as one of legal principles for the method calculating the amount of damages due to patent infringement. In particular, Japan codified the mixed method through the revision of the patent law in 2019, and it is assumed that the revision of the patent paw in South Korea was influenced by the revision of the patent law in Japan. In South Korea, damages caused by patent infringement is calculated in small amounts, which has led to a lot of criticism that it weakens the inventor's motivation for patent inventions, discourages companies from investing in patent inventions, and does not effectively deter potential patent infringement. The mixed method may create a legal environment in which the patentee may be granted a large amount of damages, since the patentee may also receive a reasonable royalty for the lost profit that he or she has failed to prove. Therefore, the mixed method could be a good alternative to break through this reality in South Korea. After all, the introduction of the mixed method into patent law in South Korea is a “good policy.”