Research On The Amount Of Damages For Intellectual Property Infringement

With the rapid development of China's economic development,theintellectual property business is sprouting.Faced with a large number of IPR infringement cases,how the judge accurately and reasonably determines the amount of infringement damages is the key to solve such cases.In judicial trials,the amount awarded in most cases varied greatly far from the amount claimed by the right holder.It is necessary to figure out the existing problems and try to make relevant recommendationsin order to achieve the effect of reasonable determination of the amount of damagesand the purpose of adequate protection for intellectual property rights of the right holders,further to enhance the intellectual property innovation and build an innovative country.This paper first focuses on the legislative and judicial status quo of intellectual property damage compensation,and through the retrieval of 100 civil judgments based on intellectual property and competition disputes tried by Beijing intellectual property court in 2018,it summarizes and analyzes them.On the basis of understanding the current situation of intellectual property rights in China,this paper studies and discusses the imputation principle and application principle of intellectual property damages.Based on the above two principles,Chinese law stipulates the calculation method and calculation order of intellectual property damage compensation.But in judicial practice,the calculation method of intellectual property damage compensation is lack of science and certainty.At the same time,the right holder is also faced with the difficulty of proof,the right holder is difficult to make up for the actual loss and other real difficulties.To solve these problems,the author comparative study on the system of intellectual property damages in the United States,through the study of American intellectual property loss of profit calculation,the intellectual property licensing fee for reference factor,the intellectual property rights causality test requirement and the intellectual property rights the application of the punitive damages,attempt to draw lessons from the experience.At the end of this paper,the author of China's intellectual property rights to determine the amount of damages and put forward their own views and Suggestions.The author suggests introducing the theory of price erosion and technology apportionment,refining the applicable conditions of legal compensation,perfecting the evidence rules and introducing the punitive compensation system.The author believes that only when the judge reasonably determines the amount of damages and makes a fair trial result,can the right holder be fully protected in a real sense and the creation and development of intellectual property can be promoted.