The Empirical Study Of Validity Of The Patent Infringement Litigation In China

With reform deepening and the pace of economic restructuring accelerating, Chinaurgently needs to strengthen patent protection in order to promote the improvement ofscientific and technological competitiveness, and promote transformation andupgrading of industrial structure. As the main channel for the patent judicial protectionand an important policy lever for adjustment of patent protection level, improvingpatent infringement litigation system becomes a hot topic concered by government andthe scholars. At present, the validity of our patent infringement litigation has beenquestioned by the Western countries, especially the United States always say "Chinafailure to protect IPR”, and put pressure on Chinese government or implement tradesanctions to maximize its own interests. Therefore, to enhance the study on China’svalidity of patent infringement litigation is not only providing a theoretical referencesfor deepening reform and accelerating economic restructuring, but also responding toWestern countries’ false statements to avoid trade sanctions.The main innovations of this paper are as follows: Firstly, the paper studied theeffectiveness of patent infringement determination. Based on the theory of patentbreadth, the adjustment mechanism of patent infringement determination was studied,and the research found: the patent infringement determination adjusted the patentbreadth mainly through the identification and confirmation of patent rights’ scope andusing the different patent infringement determination principle. The empirical studyfound that the courts in our country generally used comprehensive coverage ofprinciples to decide tort, which could prove that our current judicial protection breadthwas narrow, and the government should gradually relaxe judicial protection breadth.Secondly, the paper studied the effectiveness of compensation for patentinfringement damage. Based on patent purpose theory, the thesis found that thepurposes of compensation including: stimulate innovation; give the patent ownerenough compensation; give the infringer enough penalties to reduce infringement;prevent the patent owner getting extra damages to reduce social welfare; differentcountries has different protection level and measures based on their own economic development’s level. Western countries could not ask the developing countries use thesame protection level as their own. The empirical study starting from conclusions ofthe "332Survey", and found: the findings in US332Investigation were non-objuetive,and China’s compensation system for patent infringement damage run effectively.Thirdly, the paper studied the effectiveness of stop infringement. This paperanalyzed the adjustment that the stop infringement did on patent breadth, and thebalance that the stop infringement made on the interests of patentee and the public.Then the thesis analyzed and compared the cases judged according to the law of USpermanent injunction and Chinese stop infringement institution, and found: our stopinfringement institution’s protection on the interests of the patentee was not enough,which would affect the incentive of innovation as well as public longly interests.Finally, the paper explored patent trolls’ challenge which posed on China’s patentsystem and researched on the countermeasures based on the analyzing of the patentlitigation’s situation in china. The study found: the patent trolls in China had a largedevelopment space to get more profit. In order to avoid the risk of litigation andrespond to trolls’ litigation attacks effectively, we should combine the characteristics ofChina’s patent system and make reference for countermeasures that the US had adoptedto improve China’s patent infringement litigation institution and the other relevantinstitutions.