earticle

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).