The Theory,Rule And Method Of Compensation Standard Of License Fee

The compensation standard of license fee is one of the ways to determine the compensation for infringement of intellectual property rights.It is based on the reasonable scope of the licensing fee of the disputed intellectual property rights,and the judge determines the damage calculation rules of the damages by comprehensively considering the relevant factors.As early as 1992,the relevant judicial interpretation has stipulated that the compensation for patent damages can be determined according to the reasonable multiple of the patent license fee involved in the case.Unfortunately,the current standard of compensation for license fee is marginalized in judicial practice,which fails to play its due institutional value to accurately reflect the market value of intellectual property rights,and can not completely solve the problem of determining the damages of intellectual property rights.The judicial practice of the compensation standard of the license fee is not satisfactory.The reason is that the limitation of the legislation and the rigidity of the judicial application make the legal effect of the compensation standard of the license fee difficult.In judicial practice,the realization of right relief depends on whether the amount of compensation for damages is reasonable,and whether the amount of compensation for damages is reasonable or not depends on whether it is determined by scientific damage calculation method.The intellectual property license fee is the most intuitive embodiment of the objective market transaction value of intellectual property.Under the background of judicial policy of "fully realizing the market value of intellectual property rights and further increasing the intensity of damage compensation",how to accurately apply and specifically implement the market value of intellectual property rights as the basis of intellectual property damage compensation undoubtedly makes this research have theoretical and practical significance.Therefore,it is necessary to sort out the compensation standards of license fee,put forward the countermeasures of regulating the judicial application of the compensation standards of license fee,and then explore more scientific and effective damage calculation standards,so as to promote the components of the judicial pricing mechanism that fit in with the market value of intellectual property rights,and provide necessary theoretical support for future domestic law revision.Based on the current situation of China's judicial practice,this paper emphasizes that under the background of the market value of intellectual property rights as the guidance,the compensation for damages should be based on the market value of intellectual property rights,this paper focuses on the four main axes of "theoretical overview and support","value basis and function","foreign legislative reference and local application status"," improvement countermeasures".it is divided into six chapters and through empirical research method,legal economic analysis method and comparative study method to carry out in-depth study and put forward the corresponding improvement suggestions.The overall structure of this paper is mainly composed of introduction,six chapters and conclusion.The introduction part mainly discusses the background of the topic,the theoretical and practical significance of the research,the research summary and research ideas.The current intellectual property legislation of our country has not fundamentally solved the core calculation rules of tort damages,that is,the difficulties of proof,insufficient or excessive compensation brought by the actual loss law or tort profit law.Instead,they often pay more attention to the improvement of the legal compensation calculation rules,which makes the problem of intellectual property damage compensation more complicated.Whether it is necessary to re-examine the current core calculation rules(actual loss law and tort profit law)to find out the cause of the problem leading to the plight of intellectual property damage compensation in China;whether the legal compensation method is more perfect or not can fundamentally solve the dilemma of intellectual property damage compensation in China,the topic of this paper stems from the thinking of these problems.The first chapter describes the connotation of the compensation standard of license fees.Although the theory of restitution of unjust enrichment,the theory of actual loss and the theory of opportunity loss interpret the legal nature of payment of royalties from different perspectives,which leads different countries to choose different legislative wording and legislative models for the compensation standard of royalties,the system design of each country has not gone beyond the system of determining damages by referring to the licensing fee of intellectual property rights Essence.In addition,through the comparative analysis of relevant systems of royalty compensation standards,the differences between royalty compensation,punitive compensation and statutory compensation are clarified,in order to respond to the view that it is not necessary to apply the royalty compensation standard.The second chapter analyzes the theoretical basis of the compensation standard of license fees.This part is based on the multi dimensional discussion of theory of loss of available interests in civil law,normative damage theory of tort law,market value theory of intangible assets,liability rules and property rules of law and economics.Through discussion,we can concluded that the damage of intellectual property is the damage of available interests,and the market value of intellectual property rights is more based on the future economic benefits of the obligee;the essence of intellectual property damage under the theory of normative damage is the loss of the future market trading opportunities of the obligee,and the compensation for the licensing fees is the compensation for the lost exclusive use of intellectual property;intellectual property licensing fee reflect the use value in the specific intellectual property market,which can be used to quantify the value of the opportunity for future economic benefits lost by the obligee.In this kind of discretion,the liability rules should be the main and the property rules should be the supplement.It not only helps to transform the market pricing of intellectual property rights to the judicial pricing of intellectual property rights,but also can avoid the occurrence of compulsory license,and then fully compensate the loss of the obligee.Therefore,the application of royalty compensation standard in the field of intellectual property has indisputable legitimacy.The third chapter analyzes the value basis and function of the compensation standard of license fee.The function of compensation standard of license fee not only correct the imbalance of interests after infringement of intellectual property rights,but also prevent future infringement.Through the simple burden of proof,the compensation standard of license fee pays more attention to the protection of the legitimate interests of the obligee,embodies the value of humanism,and is regarded as a kind of damage calculation standard with higher social benefits from the perspective of economics.In addition,it through providing a good ex post protection mechanism for the right holders,helping to realize the value pursuit of intellectual property incentive innovation.In the fourth chapter,according to the comparative research method,the most representative countries,such as the United States,Germany and Japan,are the most representative countries to discuss the compensation of license fees for infringement of intellectual property rights abroad in the way of historical retrospection.There are some basic commonalities in the legislation and judicial application rules about the compensation standard of license fees in typical countries,but there are still many differences.First of all,in terms of legislative model,the United States and Japan adopt the combined claim model,while Germany adopts the single claim mode,which is the compensation standard of license fee and other damage calculation standards are not allowed to apply to the same case at the same time.Secondly,from the perspective of judicial application rules,the United States has rich judicial experience in the judicial determination of royalties.Different courts have created different methods to determine royalties in judicial cases,which also leads to the absence of uniform rules for determining reasonable license fees within the scope of the federal court.Germany and Japan usually except for the adopting the existing established royalties,virtual license fee under the Hypothetical negotiation is also the main basis for the determination of license fee compensation,which undoubtedly provides a multi perspective interpretation for the standard of license fee compensation.The fifth chapter analyzes the current situation of legislation and judicial application of the compensation standard of license fees in China.The system design of China's compensation standard of license fees has experienced the development of "from nothing to have,from existence to excellence",achieve the transformation from "the guidance of judicial documents" to "the explicit provisions of legislation",and gradually formed a legislative model as an alternative to the actual loss method in the system of intellectual property infringement damage compensation.However as far as the cases of right infringement are concerned,its effect is still limited.This reflects that there are three deficiencies in the compensation standard of of license fees in China:the first is the obstacle of applicability caused by the narrow preconditions of application;the second is the conflict of rules caused by the suspected punitive color of the reasonable multiple rule;the third is the lack of flexibility caused by the single basis and rigid application of compensation standard of license fees.The sixth chapter discusses the way to improve the compensation standard of license fees in China.First of all,reshape the substantive rules of the compensation standard of license fees in China.In the reform of the legislative style,the legislative wording of the compensation standard for royalties in China should be revised,optimize the applicable premise of the compensation standard for royalties in China.In the improvement of the specific applicable rules of the compensation standard for royalties,the "reasonable multiple" rule of the current compensation standard for royalties should be reformed,expand the types of the basis for determining the royalties and the factors to be considered in the determination of royalty should be specified.Secondly,it should improve the procedural rules applicable to the compensation standard of of license fees in China.In the reform of evidence system,the standard of proof of the amount of damages for intellectual property rights should be appropriately reduced,and the rules of expert witness should be introduced into the compensation for intellectual property damages,so as to solve the dilemma of providing evidence in the determination of damages for intellectual property rights.In order to ensure the transparency and fairness of determining the amount of damages in judicial practice,it is necessary to restrict the discretion of judges in determining the amount of royalties.Thirdly,based on the analysis of substantive law and procedural law,this paper puts forward the legislative proposal to improve the compensation standard of license fees in China,so as to achieve the improvement of the compensation standard of license fees in specific terms,so as to build a compensation system for intellectual property damage that conforms to China's current innovation and social progress.