Research On The Apportionment In The Compensation For Damage Of Intellectual Property

In this article,from the three cases of intellectual property infringement damages, through analyzing our country’s intellectual property damage compensation legislation and the judicial application, found the problems reflected by the above three cases are widespread in juridical practice of China. Main performance for these problems are:Generalization applicable statutory compensation, ruling discretionary calculated on the basis of no unified standard of compensation and lack of quantitative relations; It is difficult for holders to meet its burden of proving the damages that just aroused by the infringer’s behave, the root cause of this problem is the lack of proof standard; The amount of the compensation is less than the claim by the holders, this problem relate to the limitation of calculation. Investigate the root cause, the problem in the legislation is that the deficiency of the casual relationship between damages and infringement provided by judge’s discretion; the problem in the judicial practice is that the lack of prove standards which can guide the parties to meet their burden of proof.How to solve these problems, by reviewing the related cases, the author found that the Chinese court has made some exploration for those problems in the judicial practice. The idea provided by Chinese court is similar to the apportionment which applied in the patent infringement compensation in American court. And the apportionment is a significant inspiration for the solution of the same problems in infringement compensation about trademark and copyright. So this article tries to analysis the feasibility to build the apportionment in the judicial practice of China, to explore the casual relationship that can meet the needs of the intellectual property protection and the needs of economic development.The apportionment in American court is a casual relationship between holder’s damages and infringement, the initial apportionment is to apportion the patentee’s damages and the defendant’s profits between the patented feature and the unpatented feature, and the initial apportionment still valid even though the current apportionment in American courts is based on the market value of the patent rather than the patented feature. The American courts set up a series of prove standards for parties like Panduit test to ascertain the compensation amount under the market analysis, which made the casual relationship more practical and expansion the scope of protection of patent.Specifically, based on the research of the apportionment and the theory of damage compensation for infringement of intellectual property rights in China, this article agree with the Chinese courts to apportion the patentee’s damages and the defendant’s profits between the patented feature and the unpatented feature, but this "apportion" just can be a principle in jurisdiction other than a rule in law like the climes raised by many scholars, because the apportion based on the intellectual feature is impossible in science which the American’s juridical practice already tell us. So this article suggest that the countermeasure to solve the above-mentioned problems is to build the casual relationship under the market analysis, it is necessary to comb intellectual property damage compensation system in China, from the nature of the compensation principles、compensation amount、causation、damage range、 prove standard、method of calculation, then set up Chinese apportionment in compensation for damage of intellectual property, make the compensation fair and reasonable, make the intellectual protection more effectively, and then can motivate the intellectual innovation, promote the market value of intellectual can be obtained orderly. This article details how to build the apportionment in china, and provide several suggestions in chapter4 after analyzing the related juridical practice in china and the connotation of apportionment in American in chapter 1-3.