(1) A patentee or exclusive licensee may claim compensation for a loss inflicted by a person who has intentionally or negligently infringed the patent or exclusive license. <Newly Inserted on Mar. 29, 2016>
(2) Where a compensation for a loss is claimed pursuant to paragraph (1), but the infringer has assigned the infringing products to third parties, the sum of the following amounts may be the amount of loss that the patentee or exclusive licensee has sustained: <Amended on Jun. 9, 2020>
1. The amount calculated by multiplying the quantity not exceeding the quantity of products that the patentee or exclusive licensee could have manufactured, less the quantity of products actually sold among the quantity of the products assigned (the quantity calculated by subtracting the quantity of products that the patentee or exclusive licensee could not sell due to any cause other than the infringement, where such cause other than the infringement prevented him or her from selling the products) by the profit per unit of the products that the patentee or exclusive licensee could have sold if not for such infringement;
2. The amount that the patentee or exclusive licensee would reasonably receive for practicing a patented invention, where there is any quantity exceeding the quantity of products that the patentee or exclusive licensee could have manufactured, less the quantity of products actually sold among the quantity of the products sold, or any quantity of products that the patentee or exclusive licensee could not sell due to any cause other than the infringement (the quantity calculated by subtracting the relevant quantity, where it is not deemed that the patentee or exclusive licensee was able to grant an exclusive or non-exclusive license for the patent of such patentee or to grant a non-exclusive license for the exclusive license of such exclusive licensee).
(3) Deleted. <Jun. 9, 2020>
(4) Where a compensation for a loss is claimed pursuant to paragraph (1), the profits that a person who has intentionally or negligently infringed the patent or exclusive license has gained due to the infringement, if any, shall be deemed the loss that the patentee or exclusive licensee has sustained. <Amended on Mar. 29, 2016>
(5) Where a compensation for a loss is claimed pursuant to paragraph (1), the patentee or exclusive licensee may claim the amount that he or she would reasonably be entitled to receive for practicing the patented invention as the loss that he or she has sustained. <Amended on Mar. 29, 2016; Jan. 8, 2019>
(6) Notwithstanding paragraph (5), the amount of loss exceeding the amount specified in the same paragraph may also be claimed as damages. In such cases, the court may consider the fact that there was no intentional conduct or gross negligence on the part of the person who infringed the patent or exclusive license in determining the damages. <Amended on Mar. 29, 2016>
(7) If the court finds, in legal proceedings on infringement of a patent or exclusive license, that a loss has been incurred due to the infringement but it is extremely impracticable to verify the facts necessary for evidencing the loss in light of the nature of relevant facts, it may award reasonable damages based on the gist of entire arguments and the results of examination of evidence, notwithstanding paragraphs (2) through (6). <Amended on Mar. 29, 2016>
(8) Where an infringement of the patent or exclusive license of another person is deemed to be intentional, the court may determine damages of up to five times the amount recognized as loss under the provisions of paragraphs (2) through (7), notwithstanding paragraph (1). <Newly Inserted on Jan. 8, 2019; Feb. 20, 2024>
(9) In determining damages under paragraph (8), the following factors shall be taken into consideration: <Newly Inserted on Jan. 8, 2019>
1. Whether the infringer maintains a superior position;
2. The degree of awareness of concerns over intent or possible loss;
3. The severity of the damage to the patentee or exclusive licensee caused by such infringement;
4. The economic benefits the infringer has obtained from such infringement;
5. The duration, frequency, etc. of such infringement;
6. Fines for such infringement;
7. Property of the infringer;
8. The degree of efforts made by the infringer for remedies.[This Article Wholly Amended on Jun. 11, 2014][Title Amended on Mar. 29, 2016]