특허법 제128조 제4항 ‘침해자 이익형’ 손해배상 추정 규정의 구체적 적용에 관한 고찰

Abstract

In a patent infringement lawsuit, calculating the amount of damages that is deemed appropriate and reasonable is a pivotal element, but at the same time, challenging. As a means to resolve this problem, the presumption doctrine was introduced. One of the most frequently claimed statutory provisions in patent infringement lawsuits is Article 128(4) of the Patent Act stipulating that “profits that a patent infringer has gained shall be deemed as losses that a patentee has sustained.” Although there have been a number of prior studies on this subject, it is not easy to estimate the specific damages by applying the above provision in actual patent infringement cases. This is mainly attributable to the fact that an infringer does not submit the required documents. Yet, calculating the infringer’s actual profit is difficult even if having submitted the documents. This paper aims to: (a) explore the specific criteria for applying Article 128(4) in actual patent infringement lawsuits; and (b) propose ways for utilizing legal procedures, such as the appraiser and expert commissioner system, order for production of documents, burden of allegation, and burden of proof, in order to promptly and properly evaluate damages incurred from patent infringement.