earticle

영어

This paper reviews 656 cases on patent infringement decided by Trial Courts of the Republic of Korea from Jan. 1st, 2009 to Dec. 31, 2013. All the cases are analyzed from the aspect of overall success rate of the plaintiffs, main rationale for the failed cases, overall success rates in terms of the types of the parties. Further, overall cases with damages awarded to the plaintiffs by the Courts are analyzed in the respect of the success rates in the meaning of the ratio of awarded monetary damages to the claimed amount of damages, types of the parties, types of the right i.e. patent and utility model, main legal basis for the estimation of the awarded damages, and the results are compared with those of the U.S. and Japan. The overall success rate is 30.6% which is comparable to 26.6% of Japan, and 33% of the U.S. The legal cause of the plaintiff's failure can be mainly attributed to the non-infringement(53.0%), invalid patent(33.2%), and public domain art(5.5%). The damages awarded by the Courts ranges from 120,000 won(approx. $110) to 14.5 billion won(approx. $13.2 million); overall average value of the awarded damages is 519.6 million won and median value of them is 58.9 million won. The success rate in terms of the monetary value is 54.4%, while the value in Japan is 40.7%. In 54 percent of the cases, the damages are estimated based on the Section 128, Paragraph 1 of the Korean Patent Code which allows discretion of the Court during appraisal of the damages. The portion of the damages based on the reasonable royalty is 13.4%, which is much smaller than the value of 81% of the U.S. and 35.2% of Japan. This is seemed to be mainly caused by the lower royalty rate approved by the Courts compared to 13.1% of the U.S. and 4.2% of Japan.