Study On The Statutory Damages For Patent Infringement In China

With the rapid development of economy and technology, high-tech patents play an important role in economic development. More and more people pay their attention to them. And they are more willing to contribute to the study with human, material and financial resources. Patent applications also keep increasing nowadays. But the phenomenon of copying and misappropriating patent technology which is aimed at getting illegal profit becomes more and more common. Patent infringement disputes occur more frequently. In patent infringement litigation, how to accurately define the amount that is the liability for damages which the infringer should bear is a daunting task faced by the Court. Since patent protection is based on public technology examination which can easily be infringed. And patentee often stays in a weak position under the burden of proof difficulties. And it is difficult to determine the amount of compensation. Patent litigations often take a long time.In order to solve this problem, current Chinese Patent Law has referenced a statutory compensation system. This statutory compensation system is able to reduce the pressure of the patentee who has to burden proof liability, also improves the efficiency of the proceedings. It makes a lot of patentee more like willing to safeguard their own legal rights by submit a law suit. But there is no specific rules in current law. There is a very large discretionary space in the statutory compensation according to the applicable rules. In the judicial practice, a large number of infringement cases were settled in lawsuits by ways of statutory damages. Which originally as a miscellaneous provisions applicable statutory compensation was widespread applicable, and the problems are also increasing prominent.Statutory compensation is a kind of relatively independent basic system. The patent infringement statutory compensation has become the dominant way of compensation for two reasons. First of all, the patentee profit loss, the infringer’s illed profits and licensing fee for three methods cause many problems in practice. Such as:it is difficult to determine actual loss and illegal income, lack of operability, current regulation about licensing fees cannot fully reflect the patent value and so on. Secondly, the statutory compensation can ease the burden of proof for the right holder, and improved the efficiency of lawsuit meantime has the advantages of simple operation. So both the obligee and the judge in the lawsuit are tending to applicable the statutory compensation.By randomly selected patent infringement damages cases which are judged to pay the statutory compensation from five provinces, I try to analyze them statistically. The current status of these selected basic compensation cases is as follows:The amount of judgment compensation generally is around one hundred thousand; the judges usually consider the type of tech patents or patent but rarely mentioned patent quality, and rarely consider the defendant’s subjective factors. The court rulings on the amount of statutory damages are often too general and lack of full reasonable andr argueed. There is no identical measurement standard.In practice, the court doesn’t recognize mental damages. To sum up, there are problems of statutory damages for patent infringement damages in our current judicial practice:statutory compensation being abused. The reason why choose statutory compensation has not been written in details in the judgment. There is lack of clearly defined standards of measurement and lack of moral damage compensation system. The statutory compensation amount is too low.Because the statutory compensation is slightly crude, and there are many problems in practice, the specific provision of the damage compensation in patent area is in urgent need of a improvement. Except the agreement of the parties, the statutory compensation can be only applicated when there are no other available methods to determine the amount of compensation. Considerations of statutory damages should be comprehensive. Except the original basis, it should also take the commercial value of patents and the plot of the infringement into consideration. To determine the legal rights of compensation should be based on the number of violations of the infringer as a standard. Mental damages should be thought about. Caution and moderation should be taken as basic principle. The application of punitive damages and the discretion of judge should be reasonable limited as well. Hoping with those suggestions, it can improve the regulation of statutory compensation and offer a complete protection to the interests of patentees.