The Determination Of Actual Loss In Patent Infringement Lawsuit

With the increasing role of intellectual property rights in economic development,issues in the field of intellectual property have become more complex and controversial.In recent years,our country's patent infringement compensation issue has caused widespread controversy in the theoretical and practical circles.Among them,the calculation rules for damage compensation and statutory compensation have been particularly evident in judicial practice.According to the statistics of the company produced in 2017,the ratio of damages awarded by the court to statutory damages accounted for 98%,actual losses accounted for 0.4%,and illegal income accounted for 0.4% of the cases of infringement of patent right disputes between 2013 and 2016 in China.Reasonable multiple of licensing fees accounted for 1.2%,and95.8% of the statutory compensations for infringements of utility model cases were actual losses,0.1% of actual losses,0.5% of illegal income,and a reasonable multiple of 3.6% of licensing fees.The ratio of compensation is 98.8%,actual loss is 0.1%,illegal income is 1%,and reasonable multiple of license fee is 0.1%.From the above statistical data,it can be seen that in China's choice of compensation methods,due to the lack of theoretical systems in the judicial practice,the first three types of compensation methods,the current compensation rules are not clear,and it's difficult for judges to be precise in trials.As a result of the amount of compensation,the shift to more statutory compensation that seems to be safe has actually led to the statutorycompensation being misused and unable to adequately and reasonably protect the legal rights of the patentee.The life of the law is based on experience.In addition to analyzing the level of legislation,problems should be discovered from the perspective of judicial practice.Of the three calculation methods of damages for patent infringement damages,the actual loss ranks first,and its significance is obvious.Therefore,for the study of the rules of actual losses,whether it is from the legislative level or the judicial level,it is of great significance to perfect the perfection of the patent infringement damage compensation system in China.This article compares and draws lessons from the U.S.system in related fields and draws on some valuable lessons from it to improve China's system design in this area.Finally,this paper puts forward some reasonable suggestions for the perfection of the damage compensation for patent infringement in our country,in the hope of improving the system.This article is divided into five parts:The first part: There are no specific standards for the application of actual losses in China.Further,after determining the actual loss to be applied,the scope of compensation is still too narrow,and the legitimate rights and interests of the patentee cannot be fully protected so that the losses can be fully filled.First,the basic theory of actual loss in China is introduced in this section.Second,through the study of the case,it points out the defects of the system in judicial practice.Again,the issues to be discussed below are proposed in three areas: applicable standards,calculation methods,and scope of compensation.The second part: The establishment of the "Panduit" standard provides a clear standard for the application of US patent damages.In this section,the author mainly introduces the “Panduit” standard for the United States' loss of profits and its amendments and developments in the long judicial practice in the United States,from which it can be found that it is worth learning from.The third part: Lost profits manifests itself in a variety of forms,and the amount of lost profits often requires scientific and economic analysis.Therefore,this part mainly discusses the calculation method of lost profits and its internal economicanalysis.Then we discuss the six different forms of lost profits in judicial practice,that is,the scope of compensation.The forth part: In the judicial practice of losing profits,the United States has left many valuable experiences worth learning from.Mainly include the applicable standard of lost profits,that is,there is a more specific and specific judgment standard for the application of actual losses;after determining the application of the lost profits for compensation,it is determined which areas belong to the lost profits,and the specific amount of compensation is required.Through economic analysis and other means to prove that the final scientific and reasonable amount of awards.In this part,the author put forward reasonable suggestions for the improvement of China's system.First of all,we need to clarify the applicable standards for actual losses in China.Second,it is proposed to increase the scope of compensation for actual losses so as to reasonably calculate losses and safeguard the legitimate rights and interests of the parties concerned.The fifth part: Conclusion...