The Choice Of Evaluation Method Of Patent Infringement Compensation

How to ascertain the amount of patent infringement compensation? Thisproblem has been troubling the judicial practice for several years. To ascertain theamount of patent infringement compensation scientifically and reasonably is of greatsignificance for judicial practice. In order to solve this problem, legal experts andscholars have been working for many years. The relevant provisions of patent lawspecifies three kinds of calculation method to ascertain the patent infringementdamage compensation amount, respectively, with the patent holder’s actual losses asthe patent infringement compensation; The infringer’s profits result from hisinfringement act as the patent infringement compensation; With reasonable multiplepatent licensing fees as the patent infringement compensation. However, because theabove three kinds of calculation methods applied in the judicial practice have theirown shortcomings, therefore, the people’s court tends to use “legal compensation”system to ascertain the amount of patent infringement compensation. However, theabuse of “legal compensation” method and the excessive use of judge’s discretionhave serious influence on patent infringement compensation’s ascertain, in judicialpractice, the patentee eventually receives low compensation, which has severelyweakened the patent system’s incentive and balance function.The author choose “to ascertain the amount of patent infringement compensationscientifically and reasonably” as the topic, expecting to find a more scientific andmore reasonable way to ascertain the amount of patent infringement compensationbesides the four methods in judicial practice at present. By concluding the calculationmethods of patent infringement compensation’s deficiencies, the author put forward amore scientific and reasonable method to ascertain the amount of patent infringementcompensation——patent evaluation.In this paper, it has five chapters, except “Introduction”. In”Introduction”, theauthor point out that although the methods for calculating patent infringementcompensation play a important role in judicial practice, they can’t ascertain theamount of patent infringement compensation accurately. In chapter one, with“embossed glass”patent infringement case as an example, the author point out that, injudicial practice, the patentee’s loss usually far more than the amount of patentinfringement compensation. So, it is high time that find out a more scientific approach to ascertain the amount of patent infringement compensation.In chapter two and three, the author introduce three methods to ascertain theamount of patent infringement compensation and the“statutory compensation” system,and point out the inadequate in the above methods. So, it is improper to use thesemethods to ascertain the amount of patent infringement compensation.In chapter four, the author introduce the principles of selecting of approaches tothe evaluation of patent infringement compensation. Based on this, in chapter five, theauthor introduce three methods that commonly used in tangible assets assessment, thatis Costing Approach, Market Approach and Income Approach. Finally, the authorpoint out that we should choose Income Approach to ascertain the amount of patentinfringement compensation. After that, the author make a presentation on how toapply the Income Approach to ascertain the amount of patent infringementcompensation.