The Conversation between the Tort Liability Law and the Patent Law -Focusing on Damages for Patent Infringement- = The Conversation between the Tort Liability Law and the Patent Law -Focusing on Damages for Patent Infringement-

다국어 초록 (Multilingual Abstract)

Damages is a very important remedy for patent infringement. However, in our judiciary practice and academic community, there has been no consensus on its concept, functions, nature, principles, elements, scope and computing methods. Although methods of calculating patent infringement damages have been stipulated in relevant laws and judiciary interpretations, these methods fail to yield expected results in practice because they grant so much discretion to judges, and the actual loss and illegal gains are difficult to estimate. Consequently, patentees cannot recover sufficient damages when resorting to law after their patent is infringed and the deterrent effect on infringers is not powerful enough. By drawing on foreign successful experience, this dissertation makes an in-depth discussion on the concept, elements, and computing methods of patent infringement damages and other related issues, having great theoretical and practical significance. Elements, principles and computing methods of patent infringement damages are fundamental issues of great significance because they are the prerequisite for deciding whether the infringer is liable for damages. Therefore, patent law must clearly define these issues. However, relevant provisions in our current patent law are equivocal, thus leading to long-standing dispute in theory and in practice. From my perspective, in the legislative technique of liability elements and imputation principles in particular, the Patent Law falls far behind the Tort Liability Law for various reasons. For different kinds of infringing acts, the Tort Liability Law stipulates different forms of liability and their corresponding imputation principle. The Patent Law should model on the Tort Liability Law by classifying patent infringement acts according to their features. Based on such classification, the patent law should stipulate different forms of liability and computing methods for different kinds of infringing acts.