A Study On The Calculation Rules Of Damages Of Patent Infringement Litigation In China

The damages systemis of patent infringement is designed to adjust the malformation relationship of the gains and losses of market interest between the right holders and the alleged infringers to protect and motivate innovation.The calculation rules is the core value of the damages systemis of patent infringement,Its specific application in litigation is not only the key to resolve patent infringement disputes,but also directly related to the basic level of patent protection.In recent years,a number of empirical studies have shown that there is a large area,wide range,high frequencyand of application on the statutory damages and a rarely frequencyand of application on the reasonable license fee about the non-statutory compensation even if the most evidence for patent infringement in China,and the amount of damages are generally low.Theorists and practitioners try to solve the problem by simply introducing punitive damages and increasing the maximum amount of statutory compensation.This paper takes the statutory damages and reasonable license fee calculation rules which are of strategic importance to improve the amount of damages under China's current patent law context as the core.uses cases which are applicable statutory compensation and reasonable license fee according to the current patent law for patent infringement of second instance from Beijing,Shanghai,Guangdong,Jiangsu,Fujiann regions for the samples,and also use the theory of the structyre of litigation,game theory,the relevant judicial interpretation of the Supreme Court and the judicial guidance of the amount of patent infringement damages issued by Provincial High Courts in Shanghai,Zhejiang,Jiangsu,Chongqing,Guangdong five regions,a three-stage game analysis was conducted on the claim of the right holder,the defense of the alleged infringer and the final choice of the judge,and a comparative study of whether or not a license fee applies was made.This paper reveals the substantive causes of the large-scale application of statutory compensation in China and some similarity characteristics and significant difference between the cases whether the license feemethod is applicable or not.Finally,the relevant recommendations from the running macro level of the legislation,the judicial system and the right person,the accused infringer,the judge's personal micro-level were given.This article provides an objective basis for understanding the prevalence of statutory compensation in China's patent infringement litigation practice,the amount of compensation is low in the judicial inertia,and making the means of a reasonable license fee to play the proper role in the establishment of the damage compensation mechanism consistent with the market value.