A Study On Determining The Compensation For Infringement By Patent Royalty

In recent years,the number of patent infringement cases has increased significantly,which requires higher requirements for the protection of patents.Especially calculating the amount of compensation for infringement,the excessive application of the basic statutory compensation method leads to the phenomenon that lacking of standard and too low compensation amount.The royalty method which is often used in the US cannot be developed well in our country.By comparing various methods of calculating damages,it is concluded that the royalty method is the most direct reflection of the patent value.This method can better protect the legitimate rights and interests of patentees,and is easy to prove,so it is necessary to improve the application rate of royalty law in China.Through the relevant provisions of our law,it can be concluded that the application premise of the royalty law is the existence of a real and reasonable pre-royalty.However,the criteria for judging authenticity and rationality are not clearly stipulated,which leads to many problems in a few cases of applying the royalty law in China,such as whether the pre-royalty has actually been paid,whether it should be filed,whether it should be approved by multiple licensees,etc.Compared with the United States,which has a sound patent protection system,the common method of royalty calculation is the virtual negotiation method.The Georgia-Pacific factors often referred to in the virtual negotiation law can be divided into quantitative factors and adjustment factors.Their functions are to provide a digital basis for the calculation of royaltys and to fine-tune the basis.The final compensation for damages can be calculated by two factors together.The established royalty law is a special case of the virtual negotiation law.If the conditions of the established royalty are satisfied,the amount of damages can be determined directly by the royalty without virtual negotiation.The royalty for a single patent covering product can be determined only by virtual negotiation method,but for the calculation of a single patent royalty for multi-component products,the virtual negotiation method is mostly used to determine the royalty rate.The calculation of the licensing base should apply the overall market value rule and the minimum saleable patent practice unit,and limit the royalty to the patent value so as to avoid the patentee being overcompensated.Comparing with the mature provisions of the United States royalty law,we should further improve the relevant provisions of China's royalty law.Limit the royalty to the benefits brought by patents,and strengthen the scientific rationality of the application of the royalty law.To solve the common problems in our judicial practice,we should improve the calculation method of royalty law,draw lessons from the established standards of royalty in the United States and explain them further.The virtual negotiation method and Georgia-Pacific factor are introduced to solve the problem of too narrow scope of application of royalty law in China,and to provide specific reference standards for further calculation of compensation amount of royalty in China.