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Subject |
Patent's Protection(4)-Civil Remedy |
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5 |
Name |
IP_Park |
Date |
2003/10/31 15:59:19 |
Homepage |
http://www.ippark.com |
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4. Civil Remedy
(a) Injunction
An infringed patent owner can bring an injunction against the person who is infringing or likely to infringe his patent right, thereby seeking a judgement that the infringer cease and desist from continuing the infringing activities or take measures to prevent the infringement. In bringing such an action, the patent owner may also plead that products constituting the infringement (including products manufactured through the infringement when the involved patent claims a process) be destroyed, or that equipment used for the infringement be removed. If an injunction is filed, it generally takes about 2 to 3 months to obtain an order on the injunction from its filing date.
If the court finds that a prima facie case of infringement has been established, the court will order the patent owner to make a security deposit to the court (The amount of security deposit will be fixed at the court's discretion, considering the possibility of reversing their order and the likelihood of damages to the other party due to the order). In the alternative, the petitioner also is allowed to file a bond covering 1% of the fixed amount, e.g., if ordered to deposit US$100,000.00 from the court, he may file a bond of US$1,000.00. If the court issues an injunction order, the court will i) prohibit the infringer from continuing the manufacturing or sale of the articles which infringe the patent right; ii) direct that the infringing articles or other articles used for the infringement be transferred to the custody of a court sheriff; and iii) instruct the court sheriff to post an appropriate public notice of the order on the premises of the respondent. The injunction is enforced by the sheriff at the patent owner's expense.
In Korea, patent infringement cases are tried by a judge in civil court who has little knowledge in the technical field, so in most cases a specialist commissioned by the court is required to furnish an opinion who in that stage is mostly likely to be a patent attorney.
(b) Damage Compensation Suit
A patent owner or its exclusive licensee may also bring a compensation suit for damages caused by the infringement against the infringer. In this case, the responsibility to prove the amount of damages is a burden upon the plaintiff. If patent infringement occurs, proving the amount of damages with sufficient precision is usually difficult. Thus, the Patent Act provides two alternatives for the calculation of damages in an infringement action. The first is that the profit earned by the infringer is deemed to be the damages incurred by the patent owner. The second alternative is that the patent owner is deemed to incur damages to the extent that a royalty is payable on the basis of the amount of the infringing activities.
Accordingly, if the patent owner does not show the damages, then he may prove the profit earned by the infringer or the payable royalty in the same business field. If the patent owner or its exclusive licensee had taken a criminal accusation prior to a damage compensation suit, the documents or materials shown in the course of the infringement investigation will be used as material evidence to calculate the amount of damages in the damage compensation suit. It generally takes about 6 to 12 months from the date of petition to its decision in district court, 12 more months in high court, and 12 additional months in the Supreme Court.
(c) Recovery of Credit/Reputation
If a patent owner or its exclusive licensee loses his credit/reputation in business due to the infringement, the court may, upon a request of the patent owner or its exclusive licensee, order the infringer to take other measures necessary for recovering the credit in business of the patent owner or its exclusive licensee. As the method to recover the goodwill of the patent owner, an apology notice about infringing the reputation of the patent owner or its exclusive licensee usually has been placed in a daily newspaper.
(d) Arbitration/Conciliation
If there is an agreement on arbitration for settlement of a patent infringement, the patent infringement case shall be settled by the decision made by the Arbitrators chosen by both parties. In case that there is no agreement on arbitration, before commencing a civil lawsuit, then one of the two parties may request a civil court to solve the case through conciliation procedure. In the course of a civil lawsuit, the court may send the patent infringement case to the Civil Conciliation Commission. At any rate, if both parties do not accept the decision made by the Civil Conciliation Commission at the same time, the case shall be settled by a judgement made by a judge at the civil court. However, if both parties accept the decision of the Civil Conciliation Commission, it has the same effect as an out-of-court settlement under the judicial system. |
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