The Empirical Study Of Statutory Compensation In Patent Infringement Litigation

Patent infringement compensation is an important part of patent infringement remedy,which shows the value of patent right to a great extent.But the result of application of statutory compensation in patent infringement litigation is unsatisfactory.There is an argument that the amount of compensation and the protection areinsufficient.However,the determination of the amount of compensation is under the effect of a combination of factors.Statutory compensation only reduces the burden of proof on the parties,and the basis for the discretion is still the evidence that the parties can provide and its credibility.Firstly,this article analyzes and summarizes 170 second instance judgments of patent infringement,whichused statutory compensation,including the subject of litigation,the type of patent,the value of patent,the nature of infringement and other factors.The nature of the parties is a high proportion of corporate legal persons.The amount of patent claims for invention patents is significantly higher than the other two types of patents,while the number of cases is the least.The largest number of cases is a design patent with the least amount of compensation.The judgments involved in the value of the patent mainly focus on four kinds of value,including product value,patent value,component value and "possible market value".The infringement mainly discussed in the productive behavior and business conduct.The amount of claims is almost four times the amount of the final court compensation,themain reason for such phenomena is the lack of evidence provided by the parties.With regard to the content of the judgment instruments,the analysis in most judgments is such general to express the forms which are not completely listed as references that does not meet the requirements.Whatsmore,it can not convince the parties.On the basis of discovering the above problems,by drawing lessons from how the United States and Japan strike a balance between compensation for infringement in the absence of sufficient evidence andpreventing the obligee from obtaining too much reparation,which providing ideas for the judges in our country to weigh the importance of each reference factor.The theory of profit lossand the theory of reasonable royalties inthe United States,and the presumption system of reasonable damages and orderring the parties to submit information for calculating damages in Japan provide some references.In order to better improve statutory damages,the paper finally proposes to introduce the analytic hierarchy process,refine the statutory compensation system for patents,establish a scientific market value evaluation system,refine the analysis of the amount of damages in the judgment documents,encourage and guide the parties to actively participate in litigation.Through the above analysis and discussion,this article provides a clearer direction for judges' adjudication work and burden of proof to make the statutory compensation play a better role in patent protection.