Sino-Japan Patent Infringement Legal System Comparison

Intellectual property is the core of knowledge-based economy, of which the rapid developments lead to an accelerating correlation between it and economic-technical realm, and the integration of global economy with the growing competition have increased the patent infringement litigation. To protect the patent holders’ legitimate rights and interest substantially, to make the patent system fully effective in economic developments and technical innovation, to maintain the orders in economy and competition environment, nations have formulated laws and acts enhancing the protection of patent, and therefore the studies on legal system of patent infringement has became both a hot and important issue. Japan, a great power in economic and patent areas, has established a mature legal system of patent protection and could help improve ours in some aspects by providing concrete experience and methods. The major content of this article is Sino-Japan comparison on patent infringement protection system, which tries to find out their features, derives from their respective development, in three dimensions. Through analysis of the strength of Japanese system and weakness of ours, this article will try to give some policy advices toward improvement of patent infringement system in the last paragraphs.This article constitutes in five parts. Part one concerns with the history of the patent laws in these two countries, the born of Patent Law in China and its three revisions and the one hundred years study from western powers of Japan through both afflictions and assimilation. This part demonstrates their respective backgrounds, origins, features and especially the necessity of studying from Japan to create a mature legal protection system of patent. Part two compares the identifications of infringing acts, including identification of infringement of patent and exclusive rights, identification of indirect infringement and the departments regulating such identifications, in both law provisions and juridical practices. This parts emphasize indicates that the "presumption of production method", indirect infringement and high position of Tokkyocho in the process of identification is extremely valuable for the improvement of our system. Part three focuses on the provisions of infringement litigation, of which the most important contents are burdens of prove, rights of a plea and scope of jurisdiction. It intend to show that although both two law systems have made clear provisions, the Japanese one is more meticulous regarding the spirit of law, more careful in system design, more mature in the areas of burdens of proof and a plea and is worthy to be learned of its experience in scope of jurisdiction. Part four analyses two countries’ infringement remedies comparing right of claim to cease patent infringement, the scope and range of indemnity, the standard of determining indemnity and calculation methods. Japanese law is relatively more concrete and clear to be understood by parties and grasped by judger in the issues of preemptive protection, plea for deleting infringing products and equipment, indirect infringement indemnity and rehabilitating reputation. To addition, the calculation methods and range of indemnity is also more flexible in Japan and it deserves our attention. Based on analysis of Japanese experience, jurisprudence and juridical practice research, part five draws some tentative conclusion on how to improve our patent protection system:to view "three relations" and handle "six works" accurately, which consists in improving calculation methods of royalties and lost interest of patent holders, reforming infringement damage identification system and the process of paying indemnity, creating a qualified Judgers’ team and a patent law system with Chinese characteristic.