An Empirical Study On The Actual Damages In Patent Infringement Litigation

Compensation for patent infringement in China mainly follows the principle of leveling,supplemented by punitive damages and the principle of market value.Studying domestic and foreign legislation,the actual damages in China has developed a unique meaning,which is different from the broad concept in other countries.The Patent Law regards actual damages as the primary method of calculating the amount of compensation for patent infringement.However,actual damages are rarely applied in trials,almost placed the neglected position for a long time.From the system of patent infringement compensation,the concepts and boundaries between actual damages and economic losses,infringement profits,and over-quota compensation are vague,leading to the sequence of application between different calculation methods be left blank.As for the specific calculation method,the scope of actual damages is still unclear,and the specific calculation method are relatively rough.To improve the actual damages,its position should be clarified in the patent infringement compensation system,by distinguishing different methods mentioned and cancelling the sequence.And the view that there is an inevitable connection between discretion and statutory compensation should be discarded,and the discretion of judges should be given and regulated.Starting from filling the loss of patent value,it should be clear that the actual damages includes the loss of profits and the loss of licensing fees by the way of identifying the market competition relationship and the right holder's ability to implement.The calculation of profit loss cannot be separated from the basic formula,and the influencing factors such as the degree of causality can be included in the coefficient K for consideration.In addition,the determination of reasonable profits and the calculation of other losses also need to be improved.The key to calculating the loss of license fees is how to determine the license fee rate.The existing licensing rates,industry rates,virtual transactions and other methods should be allowed to determine the benchmark rates,and the corresponding adjustments should be made according to market conditions,patent value and other factors.