Intellectual Property Infringement Damages

Compensation for intellectual property is the focus and difficulty in trial. Should the infringer without fault pay damages to the right holder? How to calculate damages? What factors should be considered into the statutory damages? Should our state establish the system for IP punitive damages? All these are topics being discussed by many scholars. Adopting the methods of goal-oriented analysis, comparative analysis and economic analysis, the essay give a deep deliberation on issues mentioned above. With more than 30000 words, the essay falls into six parts except the preface and the conclusion.Part I introduces three goals of compensation for IP, that is compensation, punishment, and prevention. Justice requires the infringer pay damages to the right holder to compensate the loss and injury made by infringement. Compensation for damages can deter the infringer and others from similar infringement. Besides, dispite of weak vindictive motive of IP right holders, the punitive factor in compensation is evident.Part II analyzes and assesses two kinds of theories : responsibility by faults and responsibility by non-faults. The author holds the opinions that the peculiarity of IP should not make the infringer without faults take responsibility for damages. And compensation for IP do not accord with the idea of responsibility by non faults. Most of foreign countries adopt responsibility by faults in compensation for IP. Therefor, our state should adopt responsibility by faults. But to solve the right holder's difficulty in providing proof, the judge should suppose the infringer has faults in some special occasion, and the infringer should take the burden of proof.Part III, the objective essential conditions of compensation forIP consist of infringement act, damages and, causality. Infringement act can be defined act violating the liability in IP law. Damages means the difference of the right holder's interest between the situation in which infringement take place and the situation without infringement. The right holder's non-property damages and reasonable attorney's fees should be compensated. The causality should be judged by combining the theory of considerable causality with the theory of legal goal.Part IV introduces two methods of Calculation that is methods by the right holder's sales volume and methods by the infringer's sales volume. And analyzes the theoretic foundation, condition, as well as the burden of proof of parties. Then explains two confused conception: profit and sales volume.Part V probes into the reasonability of statutory damages, introduces present system for statutory damages in china's IP law. Then puts forward two suggestions: The first is the statutory damages for copyright and trademark should in no event be less than a reasonable royalty for the use of IP by the infringer. The second is the factors related to the statutory damages can be divided into four types: factors of the right holder, the factors of IP products, market factors and factors of the infringer.Part VI introduces conception, history and theoretic dispute. Then, using the scholar's different opinions for reference, the author puts forward his own views on wether our state should adopt IP punitive damages. The author hold the view that punitive damage can replenish the traditional method of compensation to pay full compen sation to the right holder, and compared with administrative fine, punitive damages can do more effective deterrence on the infringement. So our state should establish the system for IP punitive damages.