Damages Assessment In Patent Cases: A Comparative Study Between China And The U.S.

Patent holder can attain patent damages award as a monetary remedy for theinfringement he sustained. Chinese patent damages calculation regime is consistentwith adequate compensation doctrine, which requires the damages awarded shouldsufficiently cover what the patentee actually loss. Patentees would rely on the patentregime for invention protection only when the patent damages awards can provideadequate compensation for the patentee, which also fundamentally harmonize thepatent regime.Chinese patent damages assessment system can’t provide comprehensivecompensation for all kinds of actual loss. Under the present system, only the patenteesuffered lost profit can acquire sensible damages calculation methods. There is still agap of damages calculation for patentee who solely suffered reasonable royaltydamages. And when the court determines the damages based on the patentee’s lostprofit, the patentee is not required to establish the factual basis for causation betweenthe claimed lost profit and the infringement, which leads to the speculative inferencethat the patentee would have made all infringer’s sale absent of the infringement. Thetest used to determine the economic value attributed to the claimed patent is soabstract that the economic value of patent is decided greatly with the court’sdiscretion.After looking into the U.S.’s patent damages calculation system, there are two types of monetary remedies for patentees, which are lost profit damages andreasonable royalty damages. Patentees who only suffered reasonable royalty damagescan only claim damages awards on the basis of lost royalty, and the patentees need toestablish the factual basis for the causation, which means he has to prove he wouldhave made the asserted sales in the absence of infringing activity. When the courtmakes an analysis on the profit attributed to the claimed patent, it would require theeconomic value of prior art should be excluded from that profit.The difference of patent damages calculation regime between China and the U.S.is the comprehensiveness of patent damages, the requirement of precise causation,and the relatively concrete standard regarding the evaluation of the claimed patent. Itis necessary to look into the U.S.’s precious case law experience regarding to theseloopholes in Chinese patent damages assessment system.