The Calculation Problem Of Patent Infringement Compensation Research In Our Country

With the rapid development of science and technology in our country, the importance of intellectual property are on the increase, the consciousness of people is becoming more and more strong. This leads to the number of patent infringement cases increased year by year, when the patent from illegal violation behavior, the court will apply what kind of patent infringement damages calculation method to determine a reasonable compensation, this problem has caused widespread attention of scholars from different countries, and research on the issue. Although our country in the patent law in accordance with the patent holder's profit losses, the infringer profits of infringement, multiples of license fees and statutory compensation for four kinds of calculations to determine the tort compensation, but in science and technology developed today, judges in many problems in patent cases emerged gradually. Therefore, in order to further improve the system of patent infringement damages calculation, solving a series of problems in judicial practice, prevent the infringement behavior, more to protect the interests of the patentee. This article through to our country at present the problems facing to comb, introduced the experience of developed countries, aiming at the prominent problems in the judicial practice is analyzed, and put forward reasonable Suggestions.This article is divided into four parts altogether, the first part of patent infringement damages from the whole system, then introduces the patent law in our country was born in 1984 until now, this part of tort compensation for damage calculation of changes in the law. Then also in the patent law in our country at present calculation method of patent infringement damages in detail, set a total of four kinds of methods to calculate, respectively is in accordance with the patent holder's profit profit compensation for damages, according to the infringer infringement, multiples compensation in accordance with the license fees and statutory compensation.The second part of the article points out the some of the problems existing in the current patent infringement cases, the current problems in the judicial practice of China have the following:the first is for patent infringement caused by the loss of profit is difficult to determine. Followed by the application of the technology in our country's judicial practice share too casual. Third, licensing evaluation system is not standard, the lack of details to the assessment of regulation, the court in the practical trial of guidance is not strong. Also lack of a complete set of evaluation mechanism in our country, the patent evaluation industry also has not been an authoritative industry rules. Fourth, the legal compensation is unreasonable, the misuse of legal damages in judicial practice is serious, at the same time the law also does not have the detailed provisions of statutory compensation calculation basis, the court when the referee for damages to patent infringement judgment reason is not clear, and the method of norm to compensate the amount of the whole on the low side. Fifth, the sequence of the calculation method of the rigid problem, cannot be calculated by the patentee to choose its own way.The third part, discusses the United States, Japan, Germany, in the patent damages which on the one hand, first of all on America's pan has four elements, technical contribution and calculation of all the reasonable market price, license fees and intentional tort to introduce specific. Secondly, the introduction of Japan's nonvolatile presumption, the infringer interests obtained profits, equivalent to the value of compensation, compensation, submit calculations for the legal rules of commands. Again, respectively expounds the Germany, where applicable, loss of profit, illegal profits, patent licensing fees when three kinds of calculation methods of concrete practice.The end of the article to the patent infringement damages involved problem, draw lessons from the successful experience, combined with domestic actual situation, put forward the following Suggestions, first, through using the pan has four elements to improve the causal relationship of the standard of proof and when calculating the patentee of loss of profit, should be included from the infringement of the quantitative measures needed this two ways to improve the method calculating the patentee loss of profit. Second, the application of the technology spread should be Shared by the infringer to the amount of proof as well as the need to analysis from the perspective of market share. Third, licensing fees compensation can evaluate factors through detailed patent licensing fees, standardize the patent agencies and patent worker qualification and establish patent evaluation database to improve. Fourth, adopt strict limit applicable statutory compensation, the legal compensation for refinement, balance the interests of both sides to judgment method to perfect the legal compensation for damages. Fifth, give a method to calculate the patentee select any autonomy. Sixth, to establish a professional team of intellectual property rights, intellectual property court, judge to cultivate compound, together, will be related to the patent case by a special court to solve the difficult problems in judicial practice.