특허권침해로 인한 손해액의 인정에서 변론취지의 참작에 관한 연구

Abstract

The patent law permit only patentee and one who consent from patentee, to use the devise protected by patent law. A man who use devise have two ways. one is legɑl way which the user of devise gains license from the righter of patent. the other is illegɑl way which the user of devise don’t gain license from the righter of patent. The patent law demand the former. But if he choose the latter, what can do patentee? Infringer of patent was not punished for crime of infringement of patent, because a public prosecutor or police don’t know which conductor violate the law of patent. Of course, the patent law permit patentee to compensate for damages to an invader of patent. But patentee should prove his damage to compensate for damages to an invader of patent. It is not easy for patentee to prove his damage, because his damage is occurred in field of invader. The court don’t permit patentee’s request if patentee cannot prove his damage. Korea patent law make patentee to alleviate prove of responsibility as to damages. patentee can insist infringer’s profit from illegal using device or fee of licensee which will receive if he permit to use device as his damages. Nevertheless, patentee cannot prove the infringer of patent’s volume of dealings and the selling price of product, the purchasing price of raw material, the contribute rate of the device in completed goods. The Korea Patent Law state that if patentee don’t know these factor, the bench can decide patentee’s damages according to his pleading. The provisions give judges all power to decide damages, but request him do his best to find all factor to calculate damages. The provisions is applicable only tort not restitution.