복수주체의 특허침해와 손해배상책임

Abstract

Patent infringement is defined as “when an accused infringer practices or uses the patented invention, or the equivalents, for business purpose without permission from the patent holder or the exclusive licensee.” Under the All Elements Rule, a patent infringement occurs only where every element of the patented invention, or its substantial equivalent, is present in the accused product or process. An issue—whether plural accusers would meet the All Elements Rule as ‘one actor’—may arise when they divided their roles in the infringement. The problem like this may often occur in the claims related to system patent or BM patent. This issue is called “Divided Infringement” or “Joint Infringement.” In a limited sense of the term, divided infringement occurs not only where one actor directs or controls other’s performance to practice the invention (“Direct or Control Type”) but also where multiple actors share a common purpose and divide their roles to use the invention (“Joint Infringement Type”). This theory, along with the tool theory, is popular in Japan and has also been confirmed in the U.S. as a common law through the U.S. Supreme Court’s Akamai V decision. In a broader sense, divided infringement contains the joint tort type of infringement where each accuser practices separate acts that would constitute all the elements of the patent claim and shares objective co-relationship. This type of divided infringement could also be found between a direct infringer and an indirect infringer as well as between a firm and its executive. Where the divided infringement is found, every factors in all of each participants in the infringement may be used to calculate the damage according to the Patent Act §128(2) ~ §128(7). In this case, each infringer will be liable for the whole damage as a joint tortfeasor liability. For the cases subjected to the Patent Act §128(8), this provision will apply to not only intentional infringement but also gross negligence infringement with similar culpability. However, only the infringer with the subjective factor will be liable for the enhanced damage because this provision has been enacted as a punitive tool against the willful behavior of the individual infringer. Therefore, the participant without the subjective culpability will only be liable for the compensatory damage within the full enhanced damage. For the foreign practices cases, there is no provision to apply under the Korean Patent Act. And the Act does not define ‘export’ as a type of patent practice. Thus, the lost profit by a foreign sale cannot not be compensated in general, but can only be covered by the Patent Act §128(4), (5), or (7).