A Comparative Research On The Remedies For Patent Infringement Between China And The U.S.

By comparing the remedies for patent infringement between China and the U.S., some suggestions are made, which are aimed at solving the problems in our current legal system of the remedies for patent infringement. Instead of covering all the three parts: preliminary remedies, remedies during the lawsuit and remedies after the litigation, under our current system, it mainly discusses the damages, permanent injunctions and the preliminary injunctions of preliminary remedies in all the five chapters of the article. In the first chapter, it introduces the general concepts of the remedies of patent infringement. And the remedies of damages and permanent injunctions in both U.S. and China are compared and analyzed in the second and third ones. During the forth chapter, it compares and analyzes the limits of preliminary remedies in both U.S. and China. In the last one, it makes some suggestions of improvements in our legal system of remedies for patent infringement.As for the damages, we are confronting two major problems: the disputes about principles and the calculation methods of the damages. The author believes that the damage rule in China should be limited within Compensatory rule, not including the punitive damages. And the calculation methods of damages include lost profits ,royalty, statute damages. While lost profits is applied, both the patent products and non-patented parts should be taken into account. And as for the patent products, some key factors should be referred to, such as the throughput and sales ability of the licensor, the absence of acceptable non-infringing substitutes, the pure profit of the infringer and the limitation of the application of lost profits. While royalty is applied, the figure of compensation should be a multiple of the license price, considering that the infringers have an advantage over licensors; however, the factors the judges should consider must be defined concretely, such as exclusive license or non-exclusive license. While statute damages is applied, the judges should take the Lost profits and royalty into account at first, which means only if the judges failed to apply the previous two methods should they choose the statute damages. Of course, the payment should not include the reasonable expanse of the licensor. And the exact amount of damages depends on the different situations of the cases and the highest amount of the royalty amount should be extended. As for the permanent injuction quest, compulsory licensing should be added to the statute. For the preliminary injunction , firstly, it should be clearly emphasized that the likelihood of success should be existed. Secondly, Balance of the Hardships Tipping in Movant's Favor should be added. Finally, the relationship between the lost for injuction should be considered.