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.

Border measures: detention request, security and counter security

A patentee may request Customs to detain the imported articles that are suspected of infringing the patent right(s).

The request referred to in the preceding paragraph shall be made in wring, accompanied by the preliminary showing of the facts of infringement and a security amounting to the duty-paid price of the imported articles, as assessed by Customs, or equivalent assurance.

Customs shall immediately notify the detention requester upon acceptance of the request. Having deemed such request to be in compliance with the preceding paragraph, Customs shall notify in writing both the detention requester and the owner of the detained articles when carrying out the detention.

By providing a security amounting to two times the security or equivalent assurance referred to in Paragraph 2, the owner of the detained articles may request Customs to repeal the detention and to follow the procedures under applicable regulations governing customs clearance of imported articles.

Customs may allow the detention requester or the owner of the detained articles to examine the detained articles, provided that confidential information protection of the detained articles is not compromised.

If the detention requester obtains a court judgment deeming that the detained articles infringe the patent right(s), the owner of the detained articles shall be liable for relevant costs including demurrage, warehousing, loading, and unloading.

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Border measures: repeal of detention and subsequent procedures

Customs shall repeal the detention in case of any of the following:

1. customs has not been notified by the detention requester, within twelve (12) days following the date of Customs’ acceptance of the request, that a litigation claiming that the detained articles infringe the patent right(s) has been initiated in accordance with Article 96;
2. a litigation initiated by the detention requester claiming that the detained articles infringe the patent right(s) has been dismissed by a final and binding court judgment;
3. a court of law in a final and binding judgment has held that the detained articles do not infringe patent right(s);
4. the detention requester has requested the repeal of detention; or
5. the condition stated in Paragraph 4 of the preceding article has been met.

If necessary, Customs may extend the time period as prescribed in Subparagraph 1 of the preceding paragraph by another twelve (12) days.

Customs repealing the detention in accordance with Paragraph 1 shall follow the procedures under applicable regulations governing customs clearance of imported articles.

If the detention is repealed in accordance with Subparagraphs 1 through 4 of Paragraph 1, the detention requester shall be liable for relevant costs including demurrage, warehousing, loading, and unloading.

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Border measures: compensation and return of security

If a court of law in a final and binding judgment has held that the detained articles do not infringe the patent right(s), the detention requester shall be liable to compensate the owner of the detained articles for the loss incurred from such detention or from providing the security as prescribed in Paragraph 4 of Article 97-1.

The detention requester enjoys the same right as a pledgee regarding the security as prescribed in Paragraph 4 of Article 97-1; the owner of the detained articles enjoys the same right as a pledgee regarding the security as prescribed in Paragraph 2 of Article 97-1. Notwithstanding the foregoing, the relevant costs including demurrage, warehousing, loading, and unloading as prescribed in Paragraph 4 of the preceding article and Paragraph 6 of Article 97-1 shall be paid prior to compensation for the loss suffered by the detention requester or the owner of the detained articles.

In case of any of the following, Customs shall, upon request from the detention requester, return the security as prescribed in Paragraph 2 of Article 97-1:

1. the security is no longer required as a final and binding court judgment has been rendered in favor of the detention requester or the detention requester has reached a settlement with the owner of the detained articles;
2. where the owner of the detained articles has suffered loss due to a repeal of detention in accordance with Subparagraphs 1 through 4, Paragraph 1 of the preceding article, or where a final and binding court judgment has been rendered in favor of the owner of the detained articles, the detention requester proves that the owner of the detained articles has been notified to exercise the right within a specified time period of no less than twenty (20) days but the owner of the detained articles has yet to do so within the said period; or
3. the owner of the detained articles has agreed upon such return.

In case of any of the following, Customs shall, upon request from the owner of the detained articles, return the security as prescribed in Paragraph 4 of Article 97-1:

1. the security is no longer required as the detention has been repealed in accordance with Subparagraphs 1 through 4, Paragraph 1 of the preceding article, or a settlement has been reached between the owner of the detained articles and the detention requester;
2. where a final and binding court judgment has been rendered in favor of the detention requester, the owner of the detained articles proves that the detention requester has been notified to exercise the right within a specified time period of no less than twenty (20) days but the detention requester has yet to do so within the said period; or
3. the detention requester has agreed upon such return.

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Border measures: formulation of procedural regulations

The competent authority shall, in coordination with the Ministry of Finance, formulate regulations governing the request of detention, repeal of detention, examination of detained articles, the procedures involving payment, provision, and return of security or assurance, provision of required documents, and other requirements, as prescribed in the preceding three (3) articles.

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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.

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