Research On Calculation Method Of Damages In Patent Infringement

With the advent of the era of knowledge economy, patent infringement casescontinued to increase, and in these cases, to compensate for the actor on the damagecaused by the patentee interests, typically require a person paying damages forinfringement, and determine the amount of compensation for fair or not directly affectthe public enthusiasm for patents and the exercise of patent rights, patent infringementdamages calculation is the key function of patent system could play. In order tofurther improve the system, greater protection of the interests of the patentee, inspireinnovation, this paper based on a provision of the existing patent law in China, foreignlegislative and judicial experience, to the construction of a precise measure and to fullfill the patentee’s damage, and predictable-damage calculation method put forwardreasonable proposals.This article is divided into four chapters, the first chapter addressed the basicpatent infringement damages compensation system theory, this section will focus onanalysis of the concept, scope and principles of patent infringement damages. ChapterII from comparative law aspects of this article is to introduce United States law, Japanand Taiwan by legislation and judicial practice on patent infringement damages, andthen to the United States, and Japan and Taiwan patent infringement damagescalculation method to comparative studies, analysis of its advantages anddisadvantages, as a reference for accurate calculation method of Chinese construction.Papers of third department describes has in China patent infringement damagecompensation of four species calculation method and in applies in the exists ofproblem, currently in China patent infringement damage compensation calculationmethod of provides too principles, Operability is poor, compensation amount partiallow, compensation range more narrow, causal relationship proved standard high,statutory compensation spread, when patentee to take legal action,it is difficult to becompensated.Last article by domestic and foreign patent infringement damages calculationmethods comparison, on the improvement of patent infringement damages calculation method made several recommendations and observations, proposed to loss of rightsholders should be reduced when calculating the compensation standard of proof ofcausation, introducing concepts of price erosion and margin of profit; Infringer toprofit contribution of distinction should be patented when calculating thecompensation; being clear all elements of influencing judges to determine licensingfees; Legal and judicial interpretation in China should refine the scope of the statutorycompensation; Introducing the principle of punitive damages, establish a standard forwillful infringement, to calculation method of perfecting China’s patent infringementdamages, it is useful to explore the judicial practice.