Font Size: a A A

On The Damages For Patent Infringement

Posted on:2014-02-25Degree:MasterType:Thesis
Country:ChinaCandidate:M B FanFull Text:PDF
GTID:2296330425979317Subject:Civil and commercial law
Abstract/Summary:PDF Full Text Request
The fact that the torts of infringers do not demolish the intellectual achievements makesthe count of compensation for damages tough and complicated for the reason that the objectof patent is an intangible intellectual achievement. For the legal fairness and justice, it is tobalance the amount of indemnity and the actual loss of injured party to an approximationthrough the degree on correction of unbalanced interests made by patent torts via the civilaction.The thesis puts forwards some suggestions on the improvement of the system of patentinfringement compensation through a case-analysis of some problems in the currentprovisions of patent infringement compensation. The thesis divides into five parts.The first part: the brief introduction and analysis of the case. It draws forth the debatedproblem through the case-analysis of patent infringement in utility model of suitcasesoccurred in Huajinping and Antigua Corporation vs. Siboting Corporation, Fengli Corporationand Tianlong Corporation. The case involves a great deal of controversies, such as how todefine the scope of patent protection, how to parallel the patent characters, how to establishthe principal and method of patent infringement compensation, how to calculate the amountof patent infringement compensation. Those above are the difficulties in the study of patentinfringement compensation.The second part: the research on the aim of patent infringement compensation. Itanalyzes the status and function of indemnity compensation in patent relief to point out thatthe current aim of patent infringement compensation in China is homogametic relief, theoverall compensation. The relief of patent infringement is to make up the loss of injuredparties, and to restrain the infringement. However, the overall compensation acts hardly on therestrain of infringements. Based on the USA’s patent infringement compensation referring tothe penalized compensation, it aims to discuss the construction of patent infringementcompensation with major overall compensation and minor penalized compensation upon theChina’s current situation on economy and intellectual property.The third part: the analysis on the elements of patent infringement compensation. This part is to state that whether an infringer’s subjective liability forms an element of thecompensation. With reference to the advanced legislation at aboard, it gives a detailedanalysis on the elements of the patent infringement compensation on the basis of theexemption on the sale, promised sale and application stipulated in the article70of PatentLaw.The fourth part: the analysis on the calculation of the amount of patent infringementcompensation and the relations among the different calculations. It has four calculations: theamount of the actual loss of the injured party, the amount of the infringers’ illegal enrichment,the reference to reasonable licensing costs and statutory compensation. It debates on thedefects of each calculation above in practice as well as the relations of each calculation likethe order.The fifth part: the suggestions on perfection of patent systems in China. Those include:the combination with remedy and penalty, the elements of patent infringement compensationaccording to the distinction of infringements’ types, endowment to the injured party withselection to the compensation calculation which is unlimited to the order of the amount ofcompensation calculation, particularization of the compensation calculation with the amountof compensation more reasonable.
Keywords/Search Tags:patent right, patent infringement, patent infringement compensation, penalized compensation, compensation calculation
PDF Full Text Request
Related items