미국 특허법상 특허 침해 손해배상액 가중의 주관적 요건인 willfulness
Willful Infringement Under U.S. Patent Law
- 주제(키워드) In re Seagate , Halo , Patent Infringement , Willful Infringement , Willful Blindness , Treble Damages , 특허 침해 , 징벌적 배상 , 특허법 제128조 , 손해배상액 가중 , Halo 판결 , Seagate 판결
- 주제(기타) 법학
- 설명문(URI) https://www.kci.go.kr/kciportal/ci/sereArticleSearch/ciSereArtiView.kci?sereArticleSearchBean.artiId=ART002710315
- 등재 KCI등재
- 발행기관 한국지식재산학회
- 발행년도 2021
- URI http://www.dcollection.net/handler/ewha/000000179907
- 본문언어 한국어
초록/요약
South Korea introduced a treble damages provision against “intentional” patent infringement in 2019. Unfortunately, Korea’s tort jurisprudence with respect to punitive damages is very scant, since punitive damages are a recent legal phenomenon in Korea. As such, the U.S. patent jurisprudence will provide helpful references as to when enhanced damages are warranted. In this article, the author conducted an extensive analysis of U.S. patent infringement cases in which willfulness was an issue. There are many factors, such as copying, design-around, counsel’s opinion, and good/bad faith that tend to weigh towards or against the finding of willfulness. These factors should be given just as much relevance in applying Korea’s own treble damages provision. It should also be noted that recent U.S. cases indicate that the mere knowledge of the asserted patent, even upon notice by the patent holder, may not be sufficient for a finding of willfulness. The same view may be controversial under Korean law, since many Korean scholars argue that intentional infringement requires proof of just that: infringement with knowledge.
more