(1) If a person who has suffered damage due to the prime contractor's violation of Article 12-3 (4) (hereafter in this Article referred to as "business entity injured by technology misappropriation" ) claims compensation for damage pursuant to Article 35, when the prime contractor or a third party provided with technical data has sold or provided the subject matter, etc. that caused an act of violation of Article 12-3 (4) (hereinafter referred to as "infringement act"), the sum of the amounts corresponding to the following subparagraphs may be deemed as the amount of damages suffered by the business entity injured by technology misappropriation:
1. The amount of profits that the business entity injured by technology misappropriation would have obtained from selling or providing the subject matter, etc., not exceeding the scale of the subject matter, etc. obtained by subtracting the scale of the subject matter, etc. actually sold or provided from the scale of the subject matter, etc. which the business entity injured by technology misappropriation could have manufactured, repaired, constructed, or performed services, among the scale of the subject matter, etc. sold or provided (referring to the scale excluding the scale that could not be sold or provided due to reasons other than the infringement act, if there are circumstances where the business entity injured by technology misappropriation could not sell or provide due to reasons other than the infringement act);
2. The amount of profits that can be reasonably obtained for the use of technical data with respect to the scale exceeding the scale obtained by subtracting the scale of the subject matter, etc. actually sold or provided from the scale of the subject matter, etc. that the business entity injured by technology misappropriation could have manufactured, repaired, constructed, or performed services, or if the scale of the subject matter, etc. that the business entity injured by technology misappropriation could not sell or provide due to any cause other than the infringement act, among the scale of the subject matter, etc. sold or provided.
(2) If a business entity injured by technology misappropriation files a claim for compensation for damage under Article 35, the amount of profits earned by the prime contractor or a third party to whom technical data has been provided as a result of an infringement act shall be presumed as the amount of damage suffered by the business entity injured by technology misappropriation.
(3) If a business entity injured by technology misappropriation claims compensation for damage under Article 35, the business entity may claim compensation for damage, stating an amount reasonably receivable for the use of the technical data subject to the infringement act as the amount of his or her own damages.
(4) Notwithstanding paragraph (3), if the amount of damages exceeds the amount under that paragraph, a claim for damages may be made also for the excess amount. In such cases, if there is no intent or gross negligence on the part of the prime contractor, the court may take such fact into account when calculating the amount of damages.
(5) Notwithstanding paragraphs (1) through (4), in a lawsuit arising from an infringement act, if the court recognizes that damage has occurred but it is extremely difficult to prove the facts necessary to prove the amount of damages due to the nature of the facts in question, the court may recognize a reasonable amount of damages based on the tenor of the entire pleadings and the results of evidence-taking.[This Article Added on Feb. 27, 2024]