Empirical Study On The Damages For Patent Infringement In China

Damage compensation for patent infringement is a very important way of patentinfringement relief. However, in judicial practice, how to calculate the amount ofdamages is a difficult issue of patent protection. There is a special phenomenon in thefield of patent infringement that the right holder did not implement the litigationpatent or he did not compete with the infringer after the litigation patent is infringed.At this point, we face many challenges to solve this problem in accordance withgeneral principles of tort damages. For example, how to redefine the “loss” of thepatentee? Or without having to prove causality violations compensation for thelosses? how much the loss of causality with this noncompliance are? And so on.This paper argues that the “loss” of a causal relationship can not prove in theory,there is no need for this "loss" to make unnecessary for extended interpretations. Inthis case, we should sought from another way of relief. In fact, an important power ofthe patent right is the permission to license others to exploit. Such permission canbring the economic benefits to the right person. But we can not mandatory interprethis license fee as a loss, as the proof of the causal relationship is very awkward. Thegeneral understanding is that tort makes the right person to “loss” but not what therights of people get such a case. Besides, we do not understand the violation of rightsas a kind of damage, because such damages are unable to measure. The right torequest for the license fee is similar to the “Property Right of Claim”, it is animportant power of the patent right. When calculating a specific license fees must becompliance with the principle of fairness and the principle of the interests of balance.We name it as a “reasonable license fees”. In other words, in this case, whencalculating the specific number of monetary compensation, we do pay attention to thepublic interest but not the loss of right holders (private property of patent), it is thatthe public goods attribute of the intellectual property rights(Patent right) is moreprominent. Now, we can protect the litigation patent through two different pathways,one is in accordance with the traditional tort compensation law principles and anoherone is in accordance with the manner similar to the absolute “property rights claim”.