On May 20, 2020, the Korean National Assembly passed a bill
amending the Patent Act to allow a claim for damages against patent infringers'
product sales that exceed the patentee's production capacity. This amendment takes effect on December 10,
2020.
Under the current Patent Act, when the patent owner's product
production capacity is 100 units, whereas the infringer sells 10,000 infringing
units to the market, it was difficult for the patent owner to claim damages for
the 9,900 infringing products exceeding his production capacity of 100. This issue has continuously been raised by
small and medium-sized companies as well as startup companies.
When the revised law is enforced, the patent owner will be able
to obtain damage compensation from the infringer for the remaining 9,900 units
as follows:
-
- Current
amount of compensation = patent owner's production capacity (100 units) ×
profit per unit
-
- New
compensation amount = (patentee's production capacity (100 units) × profit per
unit) + (excess (9,900 units) × reasonable license fee)
It should be noted that this new standard for damage calculation
may be applied in combination with the treble damage compensation for willful
patent infringement, which has been in effect since July 9, 2019. As such, under the new standard, the number of
treble damages will also increase.
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