Patent Infringement Compensation Calculation Method Research

A patent is the exclusive rights the inventor enjoyed because of his inventions, utility models and designs.The object is the invention, utility model and design. Patent infringement is to implement the patent without the authorization, namely, the technical program recorded in the patent claims is reflected by the product or method accused of infringement in a literal or equivalent means. Because patents can bring considerable economic benefits, it is easy to become the object of tort. Damages is a legal sanction for a violation of the law, Infringement of property rights or Personal rights. compensation for infringement of patent infringement is the person who acts on the rights of patent infringement have caused damage to the other party and should pay compensation for loss or civil liability for losses greater than the other..With the rapid development of high technology and patent rights awareness, Patent dispute cases increased year by year.It must correctly handle patent infringement disputes, and reasonably determine the amount of compensation for infringement of patent rights to protect the legitimate interests of patent holders, encourage invention and creation, promote the application of the invention, and balance the interests of all. It has been difficult problems in judicial practice and legal theory to determine the amount of patent infringement damages.lt not only involves the infringement of the constituent elements, responsibility principle----infringement identify problems, but also involves issues of principle to determine the amount of compensation, the scope of identified problems, and the problems of specific calculation method of the principle of selection, application, order, and so on. Many problems about compensation for patent infringement issues need to be deeply studied. So it has become a hot topics in legal theory study.If we want to determine reasonable and accurately amount of compensation for patent infringement, it must be on the basis of the existing legislation and combine judicial policy to determine the appropriate compensation principles and scope, and choose the calculation of the specific case.At present, many scholars have summarized and researched on the calculation of compensation for patent infringement from different points of views. Some scholars studied the calculation method of compensation in theory, focusing on theoretical exploration and study of comparative law, focusing on fair and rationality of compensation for patent infringement, There are the tendency of dependence each other and conflicts in their research. Although these academic results has some practical significance, but the application of these theories is weak. In applying theory to solve practical problems, its significance is very limited to operate in practice, to reduce judges'work burden and the work burden of related personnel and improve the efficiency. There are also some scholars or practitioners analyze from the practical point of view, but most of them just interprete clause of the law or the degree of extension. The academic results relatively are easy to understand and applied by most people, and there are much significance of guide in practice. But these academic results have not formatted the calculation logic system that is closed, easy to operate in practice. So it becomes very necessary to study the calculation logic system of compensation for patent infringement.This paper will follow the writing ideas of raising problems——analysis problems——solving problem to study the calculation of compensation for patent infringement, and base on the above ideas, the paper will be divided into five parts.The first part, raising problems.This paper introduces the case of Shanghai Di Hao Trading Co., Ltd sueing Du Du Hao Plastic Products Factory, Xin De Long Hardware Co., Ltd for utility model patent infringement, describes the basic situation of case and trial, analyze the method of calculating patent infringement compensation, and find the reasonable place and problems of the calculation method. From above, it will propose the problems existed in the compensation calculation method nowadays.The second part, to counter the problems on the calculation of patent infringement compensation the first part proposed, this part will briefly describe the TRIPS Agreement, and the legal provision on compensation calculation method of the typical countries of United States, Germany, Japan, and introduce in detail the regulations in our laws, judicial interpretations and related justice policy, and comparatively analyses the provisions of domestic and foreign briefly.The third part, the paper will discusses the principle of compensation for patent infringement and scope. The principle of compensation for patent infringement which include the principles accepted by both sides. Filling principle and the principle of punishment, the legal standard of principle, the principle of equity interests, contribution principle, net of gains offset the losses and reasonable principle of presumption, and so on. The scope of compensation is the "actual loss", which includes actual damage to property has occurred (ie positive damage) and the expected loss of possible benefits (ie, negative damage). This part will provide principled guidance for the concrete solutions ---- construction of patent infringement damages calculation logic system that the fourth brought up, in case the solutions go out of legitimate and reasonable track and get into the trap of limited. It is the foundation of the fourth part.The fourth part, to research the calculation method of compensation for patent infringement, attempt to build a operational,relatively simple and easy-to-calculated logical certain system of the calculation method.This part will base on the existing laws, regulations, judicial interpretations, judicial policy and civil law theory. By summarizing the various existing calculation methods ---- calculated by the two sides consultations and recognized, calculated by the loss suffered, calculated by the benefits derived, calculated by the appropriate multiple of the amount of the exploitation fee, calculated by statutory damage, this part will organize them sequentially at different levels and sub-categories. Then this part will integrate the items of all the calculation method and the formulas, and take them into the tables formulated to simplify a formula, optimize the problems of piling up largely and disorderly of all the formulas, visually express the various formulas. The study will try to find out the appropriate formula when we select a formula, and we just need to input the corresponding figures that it will calculate the compensation amount conveniently and quickly, hope can improve the predictability of the specific amount of compensation, reduce the work difficulty of the associated personnel (especially the liberal arts background of the staff), improve their work efficiency.For calculation of statutory compensation in the practical application in the extremely popular, the fourth part will be relatively in-depth study on the calculation of statutory damages. Firstly, comparing with the method of work compensation or sentencing classes in criminal law, refine the scope of the statutory compensation for the seven grades, so we can confirm which grades the case really belongs to according to circumstances of the case, which have considerable role to limit the arbitrary of the statutory compensation. Secondly, divide the factors which affect the calculation of statutory compensation into six main categories according to the specific circumstance of subject and object, three grades ---- levelⅠ, levelⅡ, levelⅢ, according to causality of influential element and compensation fee, and base on this establish the calculation model of statutory compensation.About reasonable expenses, they include Loss of interest, consulting fees, reward and travel expenses paid for to stop the infringement, Litigation costs, legal fees, notary fees, expenses for inspection and collection evidence, evidence preservation fees, costs of evidence production and mailing, identification of the necessary fees, costs of investigation and evidence collection, costs of rehabilitation published in the advertising and the other reasonable expenses. The calculation method of reasonable expenses is simple. The paper will create a table to intuitively induce above expenses and input corresponding data in corresponding position, then sum up all the data the expenditure corresponded and calculate the data of reasonable expenses. It is convenient and quickly.Finally, we probe into the problem of the application principles and application order of the calculation method of compensation. Application principles is the basic norms that we should obey when choice and application the calculation method, including the principles of choice the high not the low, the principle of combination of accurate calculation and estimated calculation, the principle of being convenient to calculate. The application order is a complex issues. As to the paper, in the case of not against the mandatory provisions of the law, application order is the following:calculated by the two sides consultations and recognized---- calculated by the loss suffered ---- calculated by the benefits derived ---- calculated by the appropriate multiple of the amount of the exploitation fee ---- calculated by statutory damage. There are specific calculation formulas under every calculation method. Calculation formulas will be applied by the order the paper arranged, and we can choose the calculation formulas to calculate with good flexibility under conforming to the application principles of compensation calculation method.This part is the focus and soul.The fifth part, that part is the conclusion.According to calculation method logical system the paper proposed, briefly re-analyse the case of Shanghai Di Hao Trading Co., Ltd sueing Du Du Hao Plastic Products Factory, Xin De Long Hardware Co., Ltd for utility model patent infringement, and discuss it conclusively.