Research On The Actual Damages In Patent Infringement

With the rapid development of high technology and the speeding up of globalization, intellectual property is becoming an important support and a strong competitive element of social and economic development of countries in the world. Today, intellectual property as the main means of competition and industrial winning weapon in the market competition among enterprises, which plays a crucial role in the operation and development of the market economy. In recent years, our country attaches great importance to intellectual property rights work, which be referred to the height of the national strategy. In all types of intellectual property, the patent system as an incentive and protection of technological innovation system, its role is more prominent. According to the existing research, patent has become the focus of the governments and enterprises pursued. However, with the improvement of people’s awareness of patent rights, patent infringement case also increased year by year. In patent infringement litigation, damages is undoubtedly one of the important issues to be addressed in judicial practice. Therefore, a reasonable definition of the patent infringement damages, will help the patentee to obtain timely and effective relief, the infringer can not get any economic benefit to the infringement, which has a positive role for the protection of the legitimate rights of the patentee and effectively curb the infringement.China’s Patent Law provides four ways to calculate damages. At present, the basic principle of patent infringement damages in China is full compensation, the purpose of compensation is to fill the patentee damages occurred by violations. And only by awarding damages based on actual damages can the aim of making the patentee full be fulfilled. China’s Patent Law gives the actual loss calculation legislative priority applicability. However, taking into account China’s basic national conditions and the current level of economic development, and patent infringement cases of highly specialized and complicated, in the absence of scientific and operability of calculation method and practical difficulties, judicial practice rarely apply the actual loss calculation, but over-reliance on the applicable statutory compensation. Due to different legal compensation standard, the judge has greater discretion in statutory compensation leads to the court decision is uneven, the law is difficult to truly reflect the fair or just, and caused a high probability of Appeals. Investigate its reason, this phenomenon has a great association with current legislation in our country. Chinese law provides only principled provisions, that infringer shall compensate the loss of the patentee. But no specific provisions for the damage compensation scope, standards and methods of the calculation of damages, etc..In this background, This article intends to study the patent infringement actual damages system, to examine its legislative and judicial status quo and shortcomings, and by drawing on foreign beneficial experience to improve our patent infringement actual damages system, undoubtedly it has some theoretical significance and practical value.