징벌적 손해배상제도에 대한 판결이 특허법상 증액손해배상제도의 실무적 운영에 주는 시사점

Currently, punitive damages has been introduced in various laws in South Korea. The implications of decision on the punitive damages for the practical operation of the enhanced damages under the patent law are as follows. First, if it is based on the decision of punitive damages under the Act on Fairness of Subcontract Transactions, “the eight considerations” that can be considered in calculating the amount of enhanced damages stipulated in Article 128, Paragraph 9 of the Patent Act are interpreted as “exemplary enumerations”. Second, considering the legislative form of the defendant's subjective requirements and of the distribution of the burden of proof of the subjective requirements stipulated in the various laws that introduced the punitive damages, the existence of willfulness in willful infringement, which is the subject of the enhanced damages under the Patent Act, means that there is culpability in the defendant's actions to the extent that it is necessary to punish the defendant according to the enhanced damages under the Patent Act. Third, if based on the decision of punitive damages under the Act on the Protection, etc. of Fixed-term & Part-time Employees, in calculating the amount of enhanced damages under the Patent Act, the court may calculate a small amount of increased damages if the degree of culpability inherent in the defendant's actions is small. Fourth, if it is based on the decision of punitive damages under the Act on Fairness of Agency Transactions, the plaintiff who intends to claim enhanced damages under the Patent Act should carefully examine the transitional provisions of the Addenda.