Intellectual Property High Court Grand Panel Decision on the calculation of damages under Paragraphs 2 and 3 of Article 102 (Carbonate Pack Cosmetics Case: IP High Court Judgment on June 7, 2019)

Given that claims for damages based on patent infringement are claims for damages based on tort, the patentee (including exclusive licensees, but hereinafter referred to as the “Patentee”) normally must prove its own damage (Article 709 of the Civil Code). However, in order to reduce the patentee’s burden of proof under the Patent Act, the following provisions for presuming the amount of damages are generally stipulated (Article 102 of the Patent Act). Article 102 has been partially amended in the amended Patent Act promulgated on May 17, 2019, but this article will not cover the amended law.

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