The Calculation Of Lost Profits In Patent Infringemrnt Damage Compensation

In recent years, the number of patent application has been increased rapidly. At the same time, the number of the patent infringement cases is also growing fast, in which the amount of the compensation for patent infringement damages has become one of the most important questions to be concerned.And how to calculate the compensation for patent infringement damages has become a hot topic.According to the<Patent Law>in China,there are four methods to calculate,but the patentee's lost profit is the basic one. But in reality, the lost profit is hardly used.In this paper, we discuss if the lost profit is the most reasonable way to calculate. Compared to the U.S.,Britain, Germany Japan,the judicial practice and many factors are different, we can find the problems in our methods.Chapter one start with the basic theory of the lost profit which is about development of lost profit in China, Compared to other three methods,the lost profits is the most reasonable method.This chapter also discuss the damage principle in China and agree the lost profit fits the principle best.Chapter two is to discuss the cases which used lost profit to calculate and to analyze the proving standard and calculation methods.Chapter three is about the lost profit in China. There are two ways to calculate lost profit. We find that there is no perfect system of the proving standard of causal relationship in our country, although there are some calculation methods, they are not quite reasonable. In the judicial practice of our country, we seldom use the lost profits to calculate the amount of damage, resulting in the situation that we have the law which can not be used.Chapter four is the comparison discussion. We should draw on the advanced experience of foreign countries, make the the proving standard of causal relationship lower, use the market rules, and make use of the calculation method of marginal profit.Gradually complete the calculation of the actual loss of the patent infringement damage compensation, so that it can be used more widely. We should find a better way to use lost profits widely.