Research On Calculation Methods Of Patent Infringement Damage Compensation

As China has entered the ranks of intellectual property powers,patent disputes have increased.In order to fully mobilize the enthusiasm of social patent inventions,in response to the country's call for patent protection.We must improve the calculation method of patent infringement damages in China,and give the patentee a fair and reasonable patent infringement relief mechanism.The first chapter of this paper mainly analyzes the problems arising from the application of patent damage compensation in China.Through the data analysis of the relevant cases of the Guangzhou Intellectual Property Court,it is learned that there is a generalization of the application of statutory compensation in practice,and the overall judgment is low.In contrast to the relevant provisions of the "Patent Law" of China,the conditions for the application of the first three calculation methods are strict and principled.The lack of provisions for the application of the actual operating procedures has led to difficulties in applying in practice.The statutory compensation calculation method is applicable to a wide range of conditions and has a wide range of considerations.It is widely used because of its ease of operation.In addition,a strict application order is defined between the calculation methods,and the parties are not free to choose and apply.The second chapter of this paper studies the calculation methods of compensation in Germany,Japan and the United States.The three countries basically did not set a statutory compensation calculation method,and did not limit the applicable order.In Japan practice,two calculation methods can be combined.The third chapter of this paper puts forward some suggestions on how to improve the calculation method of patent infringement damage compensation in China.This paper believes that: First of all,for the calculation method of statutory compensation,it is necessary to standardize the scope of application of restrictions,and stipulate more uniform and detailed considerations.As the infringement damage compensation calculation system matures,the statutory compensation calculation method is gradually abandoned.Second,improve the relevant provisions of the first three calculation methods.Pay attention to the consideration of refining the applicable regulations and expanding the applicable premise,thus reducing the difficulty of application.The patentee can reasonably choose to apply various calculation methods based on factors such as the convenience of proof and the compensation amount close to the loss.The strict order of application between the calculation methods is cancelled,and the different calculation methods are allowed to be combined.Finally,when applying the “real loss” calculation method,consider which stage the patented product is entering the market.In the dynamic process of the market,the sales volume and profit amount are revised.When the calculation method of "illegal infringement profit" is applied,the technical contribution rate of the patented technology is calculated to accurately determine the amount of compensation.The introduction of the "analytical method" and the "hypothetical negotiation method" to solve the problem of the "reasonable license fee" calculation method cannot be applied when there is no license fee standard that can be referenced and filed.