일본 개정특허법 제102조 제1항에 의한 손해배상액의 산정에 관한 연구

Abstract

The Patent Act allows the patentee to claim the amount of damages which is multiplied by ‘the amount transferred by the infringer’ and ‘the net profit per sales unit of the patent holder’ against the patent infringer in the event of patent infringement. In addition, It allows to deduct the quantity exceeding the patentee's production capacity and the quantity that the patentee could not sell from the amount trans- ferred by the infringer, in consideration of the purpose of compen- sation for damages. As a result, if the amount of the infringer's transfer exceeds the patentee's production capacity, the infringer could unfairly take advantage of the excess amount, which could lead to the patent's infringement. In order to solve these problems and ensure that damages are calculated at an appropriate level, the Patent Act 2020 was amended to allow the patent holder to claim compensation by calculating the amount of damages deducted from the amount of transfer of the infringer, in the application of Article 128(5) of the Patent Act. That is, the combined use of Articles 128(2) and (5) of the Patent Act was recognized with the revision of the Patent Act in 2020. In the case of Japan, which had almost the same structure and contents as Korea regarding the calculation of damages under the Patent Act, the amendment of the Patent Act in 2019 allowed it to claim compensation by calculating the amount of damages deducted from the amount transferred by the infringer (Article 102 (1) of the Japanese Patent Act). The revision of Japan is almost identical to that of Korea and seems to have influenced the legislation of Korea. The various discussions in Japan are expected to be of considerable help in interpreting and applying these regulations in Korea. This paper seeks to provide a direction for interpretations of the regulations, referring to discussions in Japan about them.