특허권 침해의 민사적 구제방법에 관한 비교법적 고찰
Comparative Studies on the Patent Remedies
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This paper explores remedies for the patent infringement in United States of America, European Patent Convention countries, and Commonwealth of Nations such as United Kingdom, Canada, Australia. Injunctions and damages are the key remedies for the patent infringement. Injunctions can be divided into two categories: preliminary injunction and permanent injunction. Different from US courts, the requirements for the preliminary injunctions in EPC countries and Commonwealth of Nations are rather simple. In UK, the moving party must convince the trial judge only that “the claim is not frivolous or vexations, so there is a serious question to be tried,” and “where any delay would cause irreparable harm to the rightholder” in UK. Most countries award permanent injunctions where the plaintiff prevails. However, recently, US Court changed this trend in eBay case. In eBay, the Court held that courts should apply “traditional equitable principles.” Traditional equitable principles requires a plaintiff to demonstrate: (i) that it has suffered an irreparable injury; (ii) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (iii) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; (iv) that the public interest would not be disserved by a permanent injunction. For damages, courts in most countries use (i) lost profit, (ii) reasonable royalty, (iii) price erosion, and (iv) entire market value theories. US also provides the basis for the application of these theories. In Panduit, the Court set forth what has come to be the framework for estimating lost profits; in Georgia-Pacific, the Court provides a list of fifteen considerations that have been thought to be relevant in awarding reasonable royalties; price erosion theory was used in Crystal Semiconductor; and entire market value theory in Rite-Hite.
Abstract
This paper explores remedies for the patent infringement in United States of America, European Patent Convention countries, and Commonwealth of Nations such as United Kingdom, Canada, Australia. Injunctions and damages are the key remedies for the patent infringement. Injunctions can be divided into two categories: preliminary injunction and permanent injunction. Different from US courts, the requirements for the preliminary injunctions in EPC countries and Commonwealth of Nations are rather simple. In UK, the moving party must convince the trial judge only that “the claim is not frivolous or vexations, so there is a serious question to be tried,” and “where any delay would cause irreparable harm to the rightholder” in UK. Most countries award permanent injunctions where the plaintiff prevails. However, recently, US Court changed this trend in eBay case. In eBay, the Court held that courts should apply “traditional equitable principles.” Traditional equitable principles requires a plaintiff to demonstrate: (i) that it has suffered an irreparable injury; (ii) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (iii) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; (iv) that the public interest would not be disserved by a permanent injunction. For damages, courts in most countries use (i) lost profit, (ii) reasonable royalty, (iii) price erosion, and (iv) entire market value theories. US also provides the basis for the application of these theories. In Panduit, the Court set forth what has come to be the framework for estimating lost profits; in Georgia-Pacific, the Court provides a list of fifteen considerations that have been thought to be relevant in awarding reasonable royalties; price erosion theory was used in Crystal Semiconductor; and entire market value theory in Rite-Hite.
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