Comparison On Damages System For Patent Infringement Between China And Japan

As one of quite important and often-used means of patent relief system,infringement damages has the primacy place when it comes to patent infringement cases in the judicial practice.In the latest release of the Judicial Interpretation,it also clearly provides the situation where infringement damages is taken as an alternative remedy instead of injunction.Whether the calculating method of the damages is scientific and reasonable or not,the determination result of the compensation amount is fair and lawful or not,can directly affect the protections of the patent right in a degree,thus decide that the implement of national patent policy in the judicial practice.The compensation for damages is the price required by the court for the infringer to pay in result of its own infringement,after the occurrence of the patent infringement.In view of the characteristics of the patent right object itself,patent assessment,and the difficulty of Quotation,the determination of patent infringement reflect the loss of rights inaccurately.Although The Patent Law has provided four kinds of compensation methods,in recent years,judicial decisions rely on statutory compensation method in a fallback way for a long term,the industry generally reflected the amount of compensation is so much low,at the same time which is criticized from the scholars strictly,complete use of the statutory compensation which should have been the trump card indicated that the present patent compensation method for infringement damages have legislation bias,even vulnerability by laying the other method of compensation aside.It should be given enough attention.By comparing the difference between the theory and judicial practice of the patent infringement damages system in China and Japan,this paper discusses the preferential orientation of the patent damages system in the basic values such as relief,prevention and sanction,to find out why the three kinds of damages: loss of profits,proceeds of infringement and reasonable royalty are difficult to be practiced in judicial process and analyzes the function of the patent damages compensation system in the market economy on the basis of supply and demand theory for economic growth.Combined with the SinoJapanese patent infringement compensation system of historical development and the status quo,important cases of judicial results,this paper explored the scientific and reasonable compensation method for infringement damages to ensure The Legal Value and Market Economy Value of Infringement Compensation System.This paper makes a detailed analysis of the present patent infringement damages system in China in order to realize that technology maintains promotion and make China am innovative country.Through the research and analysis of theory,judicial practice,data and case,this paper argues that the following principles and rules should be established in the system of the present patent infringement damages,that is,to construct the parallel value system within the purpose of remediation and sanctions,to standardize the evidence of the parties in the patent litigation,to allow the litigant the right to choose the method of compensation,and the combination of compensation method according to different cases on the request,to specify the elements and restrictions of these three methods including loss of profits,proceeds of infringement and reasonable royalty promoting the use frequency of three methods;Under the commercialization of patent rights,to make judicial damages as an important part of the patent operation,to determine the amount of compensation with the help of the market value of patent,to limit the discretion of the judge,to not allow the parties taking the statutory compensation initiatively,to make sure the judge 's free trial is truthfully written into the verdict,instead of simply enumerating the types of rights,the parties' infringement plot,legal precedent as a reference factor,to establish accounting staff team in the intellectual property court just like technical investigator system,to allow the patent agent to participate as a litigant in patent infringement litigation.