독일에서의 특허권침해 손해배상액 산정 및 기준에 관한 연구

초록

The purpose of this paper is to review assessment of the damages for patent infringement according to German law. The precise amount of the damages incurred by the plaintiff is determined in separate proceedings. In practice these proceedings rarely take place, since in most cases a settlement is reached before such proceedings are initiated. The plaintiff is free to calculate the damages which are incurred according to the following three methods: lost profits, reasonable royalties (so called “licence analogy method”), or surrender of the profit generated by the infringer. To assess compensatory damages, the judge is called upon to decide the likely outcome of the situation and especially the profits the patentee would have achieved if the infringement had not occurred. If the alleged profit is disputed by the defendant, the patentee has to reveal details about the cost structures of his enterprise, which are examined by an expert. Alternatively, the patentee may demand a suitable licence fee. In this case the infringer has to pay the licence fee that would have been agreed on by reasonable contractual partners. German courts have always shied away from adding penalty surcharges to the licence fee as a form of sanction in response to patent infringement. The third possibility for compensating for damage caused by the infringement of a patent is the recovery of profits. The infringer is treated as if he had conducted his business and made profits on behalf of the patentee. In a recent ruling the German Federal Supreme Court held that, in determining the infringer’s profit, it is basically correct to deduct not all the costs from the proceeds actually obtained but only the variable costs of the manufacture and marketing of the contested embodiment.

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