Research On Compensation System Of Patent Infringement Damage In China

With the emergence of scientific research and development achievements in countries around the world,it has promoted the continuous innovation of production modes among enterprises in the country,greatly improved the overall production capacity of the society and enriched the quality of life of the people.It shows that in China's national society with Chinese characteristics,there has been a progressive trend of modern scientific diversification.Under the influence of this trend,a number of different ways of infringing intellectual property rights have emerged correspondingly.These include a variety of patent infringement.With the gradual increase of the number of patent infringement cases,the determination of the amount of damages in patent infringement litigation is extended.Our country legislation has set up four kinds of methods to calculate the compensation amount.However,in judicial practice,it is difficult to calculate damages,to provide evidence and to determine.At the same time,excessive application of legal compensation also leads to a low amount of compensation,which makes the patentee unable to receive adequate relief and challenges the authority of patent right.Therefore,the research on the amount of damages for patent infringement is of great significance to the theory and judicial practice of patent infringement in China.Based on the main problems of patent infringement compensation in our country at present,and drawing on the useful experience of foreign legislation and judicature,this paper analyzes the methods and ideas of determining the amount of compensation from theory and practice,so as to construct a set of compensation methods that can accurately calculate and fully fill the damages of right holders in our country.This paper is divided into four parts.The first part details the basic theory of damages for patent infringement,and concentrates on the concept,constitutive elements and the principle of damages for patent infringement.Liability for damages includes four elements: patent infringement,result of damage,causality and fault.The principle of damages for patent infringement affects the scope of damages and is the core issue of damages.Our country should apply the principle of total compensation.The second part describes the problems existing in the compensation of patent infringement in China,including the following problems: first,the sequence of calculation method is rigid,and the parties cannot freely choose the calculation method.Secondly,the scope of compensationis not comprehensive enough,the lack of indirect losses and mental damage compensation.Third,the principle of liability is not clear enough.This paper believes that the principle of liability for fault should be applied to the compensation for patent infringement.Fourth,the technical allocation rules are simple and arbitrary,the guidance is not strong.Fifth,the four methods have their own problems and need to be improved.The third part of the United States,Germany,Japan's calculation analysis and evidence rules,the pan has four elements,and comprehensive market rules and technology sharing,Germany's three kinds of calculation methods and reduces the causation proved highly,Japan's elaboration question four calculation methods and rules,provide a powerful reference for our country's legislation and judicial practice.At the end of the paper,some Suggestions are put forward according to the successful experience of foreign countries.Introducing the theory of marginal profit and price erosion to the lost profit;In reducing the standard of proof of causality for reference to the United States Panduit four requirements;Perfect the apportionment rules and allocate the burden of proof to make it more applicable;For the reasonable license fee,we use the United States virtual negotiation law for reference.Specify the applicable amount of legal compensation;To grant the parties the freedom to choose the applicable method of calculation;Put forward reasonable Suggestions for increasing punitive damages;We will expand the scope of compensation,establish a system of compensation for mental damage,and fully protect the legitimate interests of the right holders.