개정 특허법 제128조 제2항의 손해배상제도에 대한 비판적 고찰

The revised Patent Act of Article 128 which estimates the amount of damages to the patentee was enacted on December 10, 2020. Paragraphs 2 and 3 before the revision, which were applied when the patentee was carrying out (producing and selling) a patent invention, estimated the amount of damage from the production quantity of the patentee, excluding the actual quantity of sales and the quantity that could not be sold by the 'other than the infringement' on the basis of the quantity of transfer of the infringer. However, under the revised law, the amount of damage can also be presumed for quantities exceeding the production quantity of the patentee. In addition, it is possible to presume the amount of damage to the quantity that could not be sold for the "cause other than the infringement act". The revision can be seen as aimed at resolving problems in which no substantial compensation has been made. However, under the revised law, the patentee may still be compensated for damages, and the benefits of infringement may remain to the infringer. This is a problem that patent holders cannot actually protect themselves because it is a reason why the infringer can continue to infringe. In addition, before the revision, it was possible to estimate the reduction or exemption of the damages by proving the "cause other than the infringement act" for the infringer, but after the revision, the patentee can prove the "cause other than the infringement act" to estimate the increase in the damages. However, the revised Act does not clearly define the meaning of the 'cause other than infringement'. Thus, the patentee tries to prove the 'cause other than the infringement' by interpreting it in a more comprehensive and wider range, while the infringer interprets it in a more limited and narrow way, to deny the patentee's proof. There are problems in that the damage cannot be easily estimated in such claims and disputes between these parties. Therefore, there is a need for a provision to be made to recover the profits left by the infringer after the compensation for the damages, and to clearly define the meaning of the 'cause other than the infringement' included in the estimate of the amount of damages. The introduction of the definition provisions may take into account (i) non-infringement substitutes or contraband, (ii) the sales force of the infringer, and (iii) the brands and designs of the infringing products, but it needs to be defined as (i) non-infringing substitutes or contusions from in a strict and limited perspective.