제4차 산업혁명 관련 특허권에 부합하는 손해배상추정제도의 개선방안

Many patent rights related to the Fourth Industrial Revolution relate to the servicemodel and its system as a method patent. These service models are provided to thegeneral public through the network, and users download these service models andenter input data necessary for their businesses to derive the final creation. Becausemethod patents such as service models etc. cannot accurately determine quantitativequantities such as the production and sales volume of product patents, it is difficultand complicated to calculate damages under the current patent law. Since paragraphs 1 and 2 of Article 128 (2) recently amended is an estimation ofthe amount of damage to the product patent. the amount of damage to the methodpatent cannot be estimated. Just in the method patent, there is no choice but tocalculate the amount of damage pursuant to Article 128 (4) (the profit of theinfringer) or paragraph (5) (reasonable implementation fee). In the method patentsrelated to the Fourth Industrial Revolution, the service model is provided through thenetwork and used, and there are many cases where users download to use theservice model. Therefore, regulations for estimating the amount of damage in thesame way as the current product patent under paragraph (2) are necessary becausethe number of use or direct use by the business person or the number of use by theusers can be calculatedThe effective protection of patent holders should be promoted by introducing a regulation for estimating an amount of damage applicable to the service model whichis the method patents related to the 4th Industrial Revolution(platform type) as wellas general method patents, and its systems. As the introduction method, the currentprovisions of paragraphs (2) 1 and 2 are applied only when patent holders as well asinfringers can specify the quantity of production and sale of the correspondingproduct patent, and it is the introduction of a system that can be applied to methodpatents for the same purpose as these product patents. The methodology of introduction is to classify method patents which is used andnot used by patent holders, and to introduce regulations applying when patent holdersare also implementing (using) the corresponding method patents. That is, it isnecessary to introduce a regulation which can estimate the amount of damagesuffered by the patent holder on the basis of the following (i) to (iv) in Article 128(3): (i) assuming cases where not only infringers but also patent holders areimplementing platform type business models which are method patents and theirsystems (providing services for use and use), (ii) calculating the total number and thenumber of times by period in that the patent holder and infringer substantially usebusiness models of the method patents, (iii) calculating the number of uses and thenumber of reductions of uses for the patent holder during the period providing theservice model by the infringer, (iv) calculating profits per unit count earned by apatent holder from a one-time use.