특허권 고의침해에 대한 손해배상액‘증액배수’결정방법 - 특허법원 2023나11276 판결(조리용기 뚜껑 사건)을 중심으로 -

After the introduction of the “treble damages” system for patent infringement under the 2019 amendment to the Patent Act, Judgment No. 2023Na11276 (the “Decision”) of the Patent Court became the first case in a patent dispute to determine an enhancing multiplier. In that sense, the Decision will have a significant impact on future cases. This paper examines whether it was appropriate for the Decision to set the enhancing multiplier at “2.” To this end, we compared and analyzed the legal principles and related precedents on enhanced-damages systems in China, the United States, and the Taiwan region, each of which applies an enhanced-damages approach in its patent law. When comparing the Decision’s use of a multiplier of 2 with examples from China, the United States, and Taiwan, we find that 2 is unduly low, and a multiplier of at least 2.5 would have been more appropriate. In other words, the court took an overly conservative stance in determining the multiplier. We hope that, in the future, the court will more actively apply multipliers that properly reflect the legislative intent of the National Assembly. Furthermore, this paper proposes the following method for deciding enhancing multipliers. First, to facilitate the process, the court should set a starting point (i.e., an initial multiplier) and then, in accordance with Article 128(9) of the Patent Act, comprehensively consider the upward and downward factors among the eight relevant elements, ultimately arriving at a final multiplier. Second, under the treble-damages system, the midpoint 2 should serve as the starting point, and under the quintuple-damages system, the midpoint 3 should be used. It has been confirmed that Taiwan and the United States, both of which employ a treble-damages system, have generally applied a final multiplier slightly above 2. Third, in typical cases of willful infringement, the starting point may be adopted as the final multiplier without adjustment, but in situations of greater severity, the maximum possible multiplier should be employed more boldly. This approach most accurately reflects the legislature’s intent.