Research On License Fees Loss Of Patent Infringement Damages

As a form of the loss of patent infringement,the loss constitutes a complete infringement loss with the lost profits in some specific situations of infringement.If the right's holder does not implement his or her patent,or has enforced his or her patent but does not compete with the infringing product,even if there is no lost profits,but there is still lost of license fee.Juridical practice is sustained with this damage and the compensation being made.And when the different parts from the same infringement act led to the loss of profits and the loss of the license fee respectively,the loss recovery system in China dose not distinguish the loss of profits with the loss of license fee which is independent of the the former one from obligee's perspective.And when the different parts from the same infringement act led to the loss of profits and the loss of the license fee respectively,the loss recovery system in China dose not distinguish the loss of profits with the loss of license fee which is independent of the the former one from obligee' s perspective.Based on this,when the research problem of this paper is that the different infringing parts of the same infringement act result in the loss of profit and the loss of the license fee respectively,if it is necessary to definitude the loss of license fee which is independent from the profit and the relief for it in the compensation counting system of patent' s infringement.Based on the research question,it is found using the comparative analysis firstly that the United States and Japan which are under Integrated computation model distinguish the profit loss with the loss of license fee and allow the rules of compensation' s merger.It is different from the German' s single computation model as well as Taiwan.Secondly,based on the compensation principle,it is known that the loss of license fee is not overlapped with the loss of profits.They have different nature and they are also subject to the range of harm indemnity.From the perspective of the principle of complete compensation,the compensation rules from the United States and Japan are more reasonable which calculate respectively and compensate combinedly.Otherwise,based on the previous research,through the review of the Article 65 from "Patent Law" which include the patent infringement compensation calculation system,this paper points out that the calculation rules of our country do not have distinguished the damage's essence between the loss of profits and the loss of the license fee as well as themselves,nor have they taken the appropriate calculation methodrespectively.Therefore,the loss of license fee which is independent of the profit loss is not defined in our country's calculation system and given the clear and appropriate relief.Finally,in response to the research question,the author make a rationalization proposal for our country' s calculation system.This essay is divided into six parts.The research question is put forward in the first part:when the research problem of this paper is that the different infringing parts of the same infringement act result in the loss of profit and the loss of the license fee respectively,if it is necessary to definitude the loss of license fee which is independent from the profit and the relief for it in the compensation counting system of patent' s infringement.In specific patent infringement case,the infringement of the infringing products can be divided into two parts : one part directly impact the right's holder of the patent product market,therefore cause lost profit of the patentee and the other part is beyond the scope of the holder ' market share or patent implementation capacity which does not cause lost profit.But the latter part encroached on the holder of the legitimate exclusive patented technology potential market space.The holder suffered from both lost profit and licence fee loss.The loss recovery system in China does not definite the discrimination between lost profit and licence fee loss.Hence,it is necessary to discuss whether to distinguish between two loss and whether licence fee loss deserve definitude and relief.The second part study on comparison analysis of the relevant rules of the United States,Japan,Germany,Taiwan.By the comparison research,American and Japanese patent law or judicial practice adapt integrated computation model in damages,and admit the coexistence of lost profit and licence fee loss,calculate them separately and give combined compensation.Meanw hile,judicial practice has developed a mature experience in calculation of reasonable ro yalty.On the contrary,Germany and Taiwan adopt single computation model,and the rig ht's holder can only obtain damages in accordance with the rule which is selected to calculate the compensation.The Patent Law does not allow to divide the damage forms which is independent and nonoverlapping,also forbid the holder to apply different com pensation calculations in combination.The third part is based on the discrimination between lost profit and licence fee loss,and Tort damage compensation principle,aims at the exploration of licence fee loss compensationprinciple.Based on the different exercise methods of the patent right,which including implement and license,the infringing products which occupy the patent product market shares therefore cause lost profit.The remainder cause licence fee loss.These two kinds of loss is not overlap and they constitute the infringement loss of the right's holder.Thus,it is inherent in the principle of complete compensation to combined compensation for the two losses.Loss of profit belong to lost profits which should get compensation,and licence fee loss is not.Due to the value of the patent right represent in the form of the market transaction value of the patent technology of design scheme,the occupation of the legal and exclusive market space which belongs to the right's holder result in the devaluation of the scheme's market transaction value.The right's holder suffers from the positive damage and the licence fee reflects the objective value of the damage.Thus,licence fee loss is real property losses in fact,and it is included in the scope of damage compensation.The forth part point out that the dilemma of licence fee loss compensation in our country's loss recovery system.The current rules do not calculate the damages on the basis of the discrimination between lost profit and licence fee loss,and the calculation of the latter one is ivory-towered.Our country's Patent Law adopts single computation model,and the right's holder can only obtain damages in accordance with the rule which is selected to calculate the whole damages.Meanwhile the calculation rules do not distinguish the essence of lost profit and licence fee loss,so there is no appropriate calculation to calculate the two kinds of loss separately.Therefore,licence fee loss is in the condition of excessive or no calculation.Rules for calculating the compensation of our country are still unreasonable.The fifth part try to put forward some suggestions focus on the explicit discrimination and separate calculation of lost profit and licence fee loss,as well as combined compensation.On the one hand,in order to explicit the calculation of licence fee loss,there are three adjustments for the implementation of discrimination,separate calculation andcombined compensation of lost profit and licence fee loss.Firstly,integrated computation model rather than single computation model should be adopted in our Patent Law,and the right holders have the right to claim combined compensation when the two kinds of loss coexsit by this way.Secondly,damages can be calculated as lost profits of the patent holder,benefits gained by the infringer currently,and the above-mentioned ways to damages calculation can only beused to calculate lost profit.It is the right of the infringer to exclude those infringing products which do not have a causal relationship with the damage of the holder out of the basis of the calculation of lost profit in juridical practice.The above-mentioned infringing products are the basis of calculation of licence fee loss.The third,to amend the current licence fee multiples rule for reasonable royalty compensation rule,and the latter rule is used for calculation of licence fee loss which is independent of lost profit.The reasonable royalty serves as the minimum compensation the right's holder can obtain.On the other hand,on the basis of the concrete calculation of reasonable royalty,this essay will draw lessons from the relatively mature calculation method of the reasonable royalty of the other countries,combine with the accumulation of judicial experience of our country,and put forward suggestion focus on the development of the specific calculation of the reasonable royalty.The sixth part summarizes the full text.