Study On Statutory Damages Of Patent Infringement

The author searched on Baidu with the keyword “patent infringement damage compensation”,and the total number of related results was nearly 7.5 million.It can be seen that patent infringement damage compensation has become a hot topic in the field of patents in China.In addition,the author the article "search for patent infringement damages" was searched on the China National Knowledge Infrastructure(CNKI),and more than 450 related articles appeared.In a word,the topic is also a research issue that Chinese scholars have been paying attention to for many years,and has a relatively full theoretical research.However,the author has opened up a new road,relying on the support of major subject(Humanities and Social Sciences Key Research Base of the Ministry of Education: Research on Intellectual Property damage calculation Standard)that hosted by professor Cao Xinming,2024 cases that found in database of patent cases including 2150 cases used statutory damages,and the applicable rate was as high as 94.15%.It means that statutory damages is becoming “solo” in the amount of patent infringement damages in judicial practice,while other calculations are performing practically no function.The author makes a precise analysis of the cases in which the statutory compensation is applied in the database,and discovers and explores some new problems: inconsistent factors,lack of calculation standards,large gaps in compensation,frequent cases of batches,lack of burden of proof of the parties,uncertainty of the upper and lower limits of the amount of the amount,unreasonable legal and discretion.Therefore,the author selected“Study on statutory damages of Patent Infringement” as hers' doctoral dissertation topic.This paper attempts to comprehensively review the current research results on statutory damages of patent infringement.Starting from the meaning of statutory damages of patent infringement,using the methods of empirical analysis,comparative analysis,historical analysis and literature research,the article discusses the nature,function and historical evolution of patent infringement statutory damages.Various basic theories such as law and economics,Philosophy of Law and interest theory analyze the theoretical basis of its existence.Examining the current system design related to statutory damage of patent infringement system,and review its current status and dilemma in judicial practice in the background.Meanwhile the author examined foreign countries' experience,and our contry can learn the experience.At last,the author explores and considers what factors should be considered when applying the patent infringement statutory damages rules and how to improve the design of the statutory damages rules system for patent infringement compensation in China.The full text consists of three parts: introduction,text and conclusion.The introduction part mainly introduces the background and research significance of the topic,the domestic and foreign research actuality,research ideas and methods,and academic innovations of this paper.The text consists of seven chapters.The details are as follows:The first chapter-"Overview of statutory damages of patent infringement" mainly discusses the connotation,characteristics,related concepts,nature and function of the statutory damages of patent infringement.Firstly,the author discussed the connotation of statutory damages of patent infringement from the perspective of etymology,scholars,judicial interpretation of laws and regulations.The statutory damages is legal,discretionary,and the amount is determined and so on.By comparing and analyzing the discretionary damages,the discretion damages and the statutory damages,it is concluded that the discretionary damages and the discretion damages have the same connotation,but only in different contexts,while the statutory damages is a kind of discretionary compensation with statutory restrictions.Secondly,the nature of statutory damages for patent infringement is discussed,which consists of the evidence reduction theory,the judge's discretion and the eclecticism.Finally,the paper discusses the functions of compensation,prevention and punishment for statutory damages of patent infringement.The second chapter-"The historical evolution of statutory damages for patent infringement" briefly introduces the development of statutory damages in foreign countries and in China.This chapter mainly analyzes the establishment and development of statutory damages for infringement damage in common law countries and civil law countries,and explores the reasons for statutory damages in different directions in the UK and US copyright laws of the common law system.The author explores the reason of the statutory damages for patent infringement damage in Japan,South Korea and China.The author concludes that the statutory damages for patent infringement damage at this stage still plays an important role in China's judicial practice.The third chapter-"The theoretical basis of statutory damages of patent infringement" mainly demonstrates the rational basis for the existence of statutory damages of patent infringement.First of all,the statutory damages for patent infringement reflects the relief and respect for the patentee from the perspective of legal philosophy.At the same time,it is the embodiment of the pursuit of legal justice value and the realization of legal order value.Secondly,from the perspective of interests balancing theory and rights weakening and interests-sharing theory,the statutory damages of patent infringement is to moderately weaken the exclusive rights of patent owners and to share such exclusive rights with other relevant stakeholders.At the same time,the statutory damages of patent infringement is also the result of the balance between patent rights and social public interests.Finally,from the perspective of law and economics,the statutory damages of patent infringement is an effective relief of patent infringement to improve the efficiency of judicial proceedings,and achieve the substantial justice.The fourth chapter-"Comparison of statutory Damages for Patent Infringement in Extraterritorial countries" mainly introduces two contents: First,it examines the legislation and judicial practice of the statutory damages of US Copyright Law,the statutory damages of Japan and South Korea's patent law,and focuses on its Current regulations and judicial practices.Second,it summarizes and analyzes the legislative and judicial practice of statutory damages in the United States,Japan,and South Korea,and finds out its shortcomings and experiences worthy of reference,thus providing reference experience for improving the statutory compensation for patent infringement damage in China.The fifth chapter-"Legislative inspection of statutory damage for patent infringement" is mainly analyzed the Civil Procedure Law,the Tort Law and Patent Law and its related interpretations and judicial policy documents of statutory damages of patent infringement.It finds that: The Civil Procedure Law and related judicial interpretations only apply to the amount of litigation subject matter that is difficult to determine value.The Tort Law and related judicial interpretations are mainly applicable to special circumstances where it is difficult to determine the personal rights and interests of the injured.The Patent Law and its related interpretations,although there are patent infringements that damage statutory damages clauses,there are still deficiencies in the calculation of compensation standards,such as inconsistent standards,applicable choices,and inconsistent scope provisions.In this part,the author discusses the conditions applicable to statutory damages,and analyzes the legal texts related to statutory damages of patent infringement,so as to lay the foundation for the perfect legislative path selection for legal compensation for patent infringement damage in China.The sixth chapter-"Judicial practice of statutory damages of patent infringement in China" make an empirical research on 2,150 patent infringement cases from 2011 to 2016 in China statutory damages.Firstly,the distribution of the sample source,the collection principle and distribution of the plaintiff's claim amount are discussed.Then,the statistics are applied to the proportion of the statutory damages,the amount of the court award,the evidence provided by the plaintiff,the factors in the specific case,and the application of the beyond statutory discretion.The result of the statistics shows that there are problems such as the generalization of the applicable preconditions for the statutory damages of patent infringement,the lack of restrictions on the discretion of judges,the inadequacy of the determination of the amount,the inability to rely on the beyond statutory discretion,the absence of the burden of proof and the large gap in damages.In addition,there are some difficulties in the amount of statutory damages such as the breadth of the higher limit and the lower limit of the amount range,the lack of calculation standards,the ambiguity of the consideration factors and the uncertainty of the upper and lower limits,which makes it difficult for judges to grasp the amount of standard of statutory damages.Similarly,this chapter provides an empirical analysis of the shortcomings and dilemmas in the judicial application of patent infringement damages through empirical research,and provides a basis for the specific improvement of patent infringement damages.The seventh chapter-"Perfection of the statutory damages of patent infringement in China" is mainly discussed in three aspects: First,the choice of legislative path.The advantages and disadvantages of the legislative path for improving statutory damages are compared in the Civil Procedure Law and related judicial interpretations,the Tort Law and related judicial interpretations and the Patent Law and its related judicial interpretations.The Patent law and related judicial interpretations to improve the statutory compensation system is thought to be the optimal and most economical method.It is proposed to make a overall revision of the patent infringement damages clause,through the evaluation of the provisions of the Patent Law Amendment(Draft)on statutory damages,and combination of the problems in the application of the statutory damages of patent infringement in China.The principle of fault liability is the basic standard for damages.It is recommended to introduce the “market value” calculation standard and the proof of obstruction presumption rule,in addition to the existing calculation standards for “loss of patentee,profit of infringer,reasonable multiple of patent license and statutory damages”.It is suggested to grant the infringer exemption from the liability for damages,on the ground of the defense that the patent is not implemented within four years from the date of application or within three years authorized by State Intellectual Property Office(SIPO).Second,the improvement of the applicable rules.It is suggested to rationally consider whether the patent infringement case has the premise that the damage has occurred,the fact that the damage amount is difficult to prove,etc.By combining all the evidence and the arguments of the parties in the trial to determine the amount of damages and the specific factors for determining the amount of compensation in the judicial documents are required to be fully reasoned to regulate the exercise of the judge's discretion.Third,the classification design of the amount range.The tiered design of the amount of statutory damages is carried out in the form of judicial interpretation.First of all,in order to guide the parties to actively participate in the judicial proceedings,it is recommended to determine the weight of the consideration factors through the parties' cross-examination and debate.Secondly,through the comparative analysis of the annual average award amount and the maximum amount of award for the patent infringement case from 2011 to 2016,the paper proposes the design for the type of the amount of statutory damages based on the type of patent right: the statutory damages for invention patent ranges from RMB ten thousand to five million;the statutory damages for utility model patents ranges from RMB ten thousand to three million;the statutory damages for design patents ranges from RMB ten thousand to two million.Finally,the tiered design of the amount of statutory damages is determined whether the plaintiff offer evidence and the quality of the evidence.The proposal for “comprehensive consideration standard” is adopted for the recommendation of incomplete evidence;the “market value standard” is adopted for the suggestion that the proof cannot be made;“minimum standard of statutory damages”is recommended for cases where the evidence is invalid or where the evidence is not presented.