Patent Act Article 96May 1, 2019

Right to claim in the event of patent right infringement

A patentee of an invention patent may demand a person who infringes or is likely to infringe the patent right to stop or prevent such infringement.

In case an infringement of invention patent occurs due to intentional act or negligence, the patentee may claim for damages suffered therefrom.

When making a demand pursuant to Paragraph 1, the patentee may request for destruction of the infringing articles or the materials or implements used in the infringing act, or request for other necessary disposal. "An exclusive licensee may, within the licensed scope, make demands in accordance with the preceding three paragraphs. However, if it is otherwise provided for in an agreement, such agreement shall prevail.

Where the inventor’s right to be indicated as such is infringed, the inventor may request for necessary disposition(s) to have his/her name indicated or to restore the impaired reputation.

The rights to claim as set forth in Paragraph 2 and the preceding paragraph shall become extinguished if not exercised within two (2) years after the patentee has become aware of the damage and the person liable for damages. This right shall also become extinguished if it is not exercised within ten (10) years after the time of infringement.

Same Article Laws

Other Related Laws

Patent Act Article 97May 1, 2019

Calculation of damages

The damages claimed pursuant to the preceding article may be calculated according to any of the following methods:

1. the method as set forth in Article 216 of the Civil Code; if no method of proof can be produced to prove the damages suffered, a patentee may claim damages based on the difference between the profit earned through patent exploitation after infringement and the profit normally expected through exploitation of the same patent;
2. the profit earned by the infringer as a result of patent infringement; or
3. the amount calculated on the basis of reasonable royalties that may be collected from exploiting the invention patent being licensed.

Subject to the preceding paragraph, where the infringement is found to be intentionally committed, the court may, upon request and on the basis of the severity of the infringement, award the damages greater than the loss suffered but not exceeding three (3) times of the proven loss.

Details >