Research On Discretionary Indemnity In Field Of Infringement Of Patent Right

Recent years the damages caused by infringement of patent right abound in great numbers.Considering the factors of actual loss,profits of infringer,rational multiple of license fee and statutory damages,it leads to faults such as insufficient basis in judicial trial,inappropriate finding and etc.when measuring the amount of indemnity.Discretionary indemnity gradually gains recognition and is being tried in judicial practice.The definition of discretionary indemnity is that under the support of certain evidences and weighing the relevant factors,the judges make a relatively reasonable finding with the means of free evaluating evidences through inner conviction and determine equitable amount of indemnity after combining the whole circumstances in case that statutory damages are inadequate to compensate the loss of right holders.This thesis comprises of 5 chapters to expound discretionary indemnity.In Chapter 1 it introduces the overview of discretionary indemnity in infringement of patent right,including definition and attributes of infringement of patent right,study of discretionary indemnity in aspects of concept,features and function respectively.In Chapter 2 the author discusses the causes that discretionary indemnity exists.Firstly it introduces current measures for damages of infringement of patent right in China,as well analyses deficiencies of adopting actual loss,profits of infringer,rational multiple of license fee and statutory damages,then concludes why discretionary indemnity exists and enumerates related cases in support of the point of view.In Chapter 3 it discusses present situation of discretionary indemnity from aspects of legislation,judicature and existent problems.Analysis indicates that discretionary indemnity for infringement of patent right in China has the following deficiencies in practice: vaguely qualitative legislation,lack of related norms,uncertain applicable conditions,complicated considerations of indemnity amount,inadequate reflection of juridical reasons in judgment and etc.In Chapter 4 it analyses the researches of discretionary indemnity in Japan,United States and Taiwan of China from institution,applicable rules and considerations.In Chapter 5 the author puts forward proposals about improving and regulating system of discretionary indemnity,such as legal status,applicable conditions,notable problems when applying the method of discretionary indemnity and etc.Finally the thesis proposes that SPC could publish more typical guiding cases related to discretionary indemnity so that it prevents similar cases have different verdicts.