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초록

영어

The case analyzed in this paper deals with a situation where ceiling-acoustic boards were sold and furthermore relevant construction service was sold simultaneously. The plaintiff argued that relevant lost profit from the service as well as from the products themselves must be included in calculating damages under Art. 128(1) of the Korea Patent Act. The Korea Supreme Court held that: (1) Art. 128(1) of the Korea Patent Act is not being applied to service but only to products; (2) collateral service can not be included into collateral sales. This paper, after analyzing jurisprudence of Art. 128(1), has made the following conclusions: (1) respecting the intent of the legislators, Art. 128(1) must be applied not only to products but also to method inventions and services; (2) in calculating lost profit, not only sales reduction of patented products but also sales reduction of collateral products could be included; (3) in determining whether collateral products (included in calculating lost profit) or not, “foreseeability” or “functional unit” tests could be applied; (4) as collateral products are included in calculating lost profit, collateral service must be included as well; (5) collateral products or collateral services can be included in calculating infringer’s profit under Art. 128(3) or reasonable royalty under Art. 128(4).

목차

I. 서론
 II. 대상 판결의 내용
 III. 대상 판결에 대한 평석
 IV. 결론
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키워드

특허권 침해 손해배상 일실이익 부대제품 부대서비스 특허법 제128조 제1항. Patent Right Infringement Damages Compensation Lost Profit Collateral Product Collateral Service Article 128(1) of the Korea Patent Act

저자

• 정차호 [ Jung, Cha-Ho | 성균관대학교 법학전문대학원 교수, 법학박사. ]

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