Citation: Cho Y. 2024. Convoyed Sales and Damage Calculation in Patent-Infringement Litigation. The Journal of Intellectual Property 19(3), 1-19.
DOI: https://doi.org/10.34122/jip.2024.19.3.1
The Journal of Intellectual Property, 2024 September, 19(3): 1-19.
Received on 1 May 2024, Revised on 27 May 2024, Accepted on 3 September 2024, Published on 30 September 2024.
Youngsun Cho*
Professor, School of Law, Korea University, Republic of Korea
*Corresponding Author: Youngsun Cho (soaring@korea.ac.kr)
This study focused on the lost sales of ancillary products or services (hereinafter, “ancillary products”) in damage calculation. The precedent and practice that excludes the lost sales of ancillary products from the application of Article 128 of the Patent Act should be reconsidered; if the sales of ancillary products could have been attributed to the holder of the patent rights “but for” the infringement, lost profits of the ancillary products should be included in the calculation of the full damage. If it is reasonably foreseen that the sales of ancillary products are concomitant to the sales of patented products, Article 128 shall be applied as if both products are analogous to “whole part v. component part.” Meanwhile, the burden of proof in overturning this assumption shall be on the infringer who is disputing the damage amount. The study discussed the legal consequences of applying Article 128 (2), (4), and (5) to various potential case types, as well as the comparative situations of some other countries in terms of this issue. Considering the recent trend of various online business models offering clients patented primary services for free and pursuing secondary profits from paid ancillary services or advertisements, this study also proposed the analogical application of Article 128 to the patent infringement of these online businesses, including the associated lost profits of ancillary services.
patent, infringement, damage, convoyed goods, sales, lost profit, royalty, foreseeability, internet platform
The author received manuscript fees for this article from Korea Institute of Intellectual Property.
No potential conflict of interest relevant to this article was reported.