Research On The Apportionment Rules In Patent Infringement Damage Compensation

China has applied the apportionment rules in many patent infringement compensation cases,but basically the judges wrote in the judgment that they consider the contribution of patents to market profits,that is,the apportionment rules.There is no detailed explanation on how to consider and how to calculate,and basically there is evidence and cross-examination by both parties,and overall there is a lack of effective persuasiveness.The apportionment rule follows the “filling principle” of the amount of infringement compensation,and is limited to the market profit contributed by the patent in question to the infringing product(patent product).It cannot incorporate other patented technologies and non-technical factors into the scope of patent protection involved,and prevent The right holder makes excessive compensation.Generally speaking,the reduced income of the patented product(the profit of the sale of the infringing product)obtained through the calculation method stipulated in the Patent Law is multiplied by the contribution rate of the patent in question to the above-mentioned income or profit.The amount of infringement compensation.Through the application status of China's current assessment rules and the rationality of the distribution rules,it is known that it has a strong urgency to improve China's assessment rules.This paper systematically improves the distribution rules of patent infringement damages in China through the following aspects.At present,China only clearly stipulates the applicable apportionment rules in the interests of infringers.It should analyze and explain whether the other three calculation methods apply the apportionment rules.The second is the application premise of the apportionment rules,fully considering the amount of patent infringement compensation in China.The status quo,from the size of the patent technology to the function of the product function and the contribution to the market profit of the product judged the application of the distribution rules or its exceptions to all market value rules;the third is to use the cost-benefit analysis method to discuss the advantages of the foreign assessment ratio determination method and shortcomings,helping the parties to scientifically and finely determine the proportion of the assessment.Finally,a procedural and operational appraisal rule application procedure including the above discussion is proposed,in order to solve the problems existing in the application of the patent infringement damage compensation rules.