Research On The Application Of Calculation Methods Of Patent Infringement Damages

In recent years,Patent infringement damages have been widespread focusedon.Patent infringement damages is the sum of the damage to the property interests ofthe patentee rights of others resulting in the loss and spiritual interests,a form ofcommitment to money or other means in a accordance with the law of tortliability.The scope of compensation.including the property interests loss and moraldamage to the two aspects.The loss of property interests include the direct,indirect andthe reasonable costs;the moral damage is that the rights of the people of good will andthe reputation damage.It’s not the same that different countries preclude the use of patent infringementdamages compensation calculations.United States only have “lost profit”and thereasonable license fee in two ways,and set the reasonable license fee to the minimumstandard for compensation; In France,the damages to the calculation to make specificprovisions in the trial practice,mainly by reference to the “French civil code” section1149;The German patent legislations is perfect,but the manner of calculatingcompensation is too simplistic,in judicial practice,the methods of calculation adoptedby the “lost profit,””illegal profit” and the “license fee”;Traces of Japanese patentcode “strong” German patent code,but the manner of calculating compensation ismore complete than Germany,in addition to the DS countries preclude the use of thethree ways in addition,there is a statutory compensation provisions(statutorycompensation cap and the strict restrictions),and it is different from China’s statutorycompensation;Taiwan China, the provisions of the calculation methods extensivelyare learned from the foreign mature legislative experience,but the principle ofcompensation and the methods of calculation are pilled with less stringent.Analysis of the patent infringement cases in the past20years,China’s patentinfringement cases presents eastern more,western less,and coastal more,inlandless.This shows that there is a direct relationship between the amount of patentinfringement and economic development;The application of the analysis of the fourcalculated,it’s found that90.5%of the cases are applicable statutory compensation;theplaintiff’s claim for the amount of the judgement of the court changed over times,butthe patent infringement case in China is overall level of compensation lower statutorycompensation in China patent infringement cases,2/3of the amount of the judgementof200,000RMB or less,although China has a large improvement inpatent compensation system,but judicial practice has yet to keep upwith the pace ofinstitution building.Paten infringement is different from ordinary tort,the differences in the way of itscalulation of damges,the calculation of the former than the latter,more specific,moredetailed.From a practical point of view,under the law of patent infringement damagescalculation is still too the principle of general and rigid.it’s necessary to give the rightholders the choice of freedom of the methods of the calculation,the calculation ofdamages is more flexible and more reasonable;the upper limit for cancellation of thestatutory compensation,the right to fit the actual compensation and restrictiveapplication of punitive damages,to balance the interests between the right holders andthe infringers.By promoting the development of China’s patent system ofcompensation.By strengthening the cultivation of awareness of intellctual propertyrights of judges and lawyers,To disclosure the infringers’ property and by the way ofnon-litigation dispute resolution mechanism so that calculation of damages is easier toachieve.