Research On Damages Awards For Patent Infringement

The purpose of awards for patent infringement in China is to make up for the actual loss of the patentee,but the high proportion of legal compensation,the adverse evidence provided by the parties and the low awards for patent infringement together indicate that the damage for patent infringement in China has not achieved the purpose of making up for the actual loss of the patentee.To some extent,the current situation reflects that China's patent protection is not in place.By studying the causes of the those problems,this paper aims to provide constructive solutions of those problems,which are of great significance for improving the patent damage compensation system and stimulating the patentee to innovate patent.By means of literature research,this paper collects cases of damage for patent infringement,and analyzes such elements as the amount of damages,the calculation method of damages,and the proof of both plaintiff and defendant.Based on the analysis of the sample cases,this paper summarizes damages for patent infringement in China: the proportion of the damages on the low side is very high,the proportion of legal damages is very high,and the plaintiff and defendant can't give evidence.The purpose of damage for the patent infringement is to fill the actual loss of the patentee.Then through the method of literature research,in order to achieve the purpose of damage for the patent infringement to fill the actual loss of the patentee,this paper analysis the legal provisions and relevant judicial practice cases related to China's damage for the patent infringement,and eventually points out unreasonable rules and useful experience of damage for the patent infringement in China.Through the analysis,this paper finds that damage for the patent infringement in China can not achieve the purpose of filling the actual loss of patentee.There are two reasons as followed: unreasonable calculation rules for awards of patent infringement and imperfect evidence rules for patent infringement cases.Using comparative research,this paper analyzes the similar legal provisions and judicial practices of the United States,Japan and Germany,and summarizes the useful experience that can be used by China.After study,the actual loss compensation scope of the United States and Germany can be used by our country.Germany and Japan's practice of lowering the standard of proof of causality can be used by our country.We can learn the application of "virtual licensing" fees from Germany and the United States.As for punitive damages,the intentional determination of the United States has reference value.In terms of evidence rules,Japan,Germany and the United States all take measures to urge the parties to present evidence in response to the uneven distribution of data.However,the specific measures are different.Comparatively speaking,order of putting forward documents in Germany and Japan is more consistent with the rules of evidence law in China.To sum up the above analysis,this paper puts forward some constructive suggestions to improve the calculation rules of damage for the patent infringements and the rules of evidence of damage for the patent infringement.In a word,the former includes lowering the causality of the actual losses of patentee,amending infringement profits,setting virtual permission,setting the specific rules of applying statutory damages and using punitive damages with caution.The latter improves the ability of parties in action to collect proof,improves the ability of court to collect evidence within the authority,lowers the standard of causality of proof,reasonable distributing the burden of proof between the parties,setting order of putting forward documents and lowering standard of reviewing and refining evidence by court,etc.