On The Application Of Technology Apportionment Rules In The Compensation For Damages Caused By Patent Infringement

The technical apportionment rule refers to determining the contribution rate of the patent involved in the product in the compensation of patent infringement damages,deducting the profit brought by the non-patent factors from the compensation of damages,so as to improve the accuracy of compensation.The application of the rule of technology allocation is of great significance.On the one hand,it is the pursuit of the principle of leveling;on the other hand,it is an effective tool to prevent excessive compensation under the background of "patent jungle" technology;on the other hand,it is also an effective regulation on the behavior of "patent piracy".The quantification of patent contribution rate in technology allocation rules is a huge problem in the world.By analyzing and comparing the application of the technology allocation rules in the United States,Japan and Germany,it is found that the starting point of all countries is to prevent the unfair expansion of patent exclusivity,so that the compensation can better reflect the market value of the patent.However,in terms of determining the contribution rate of patents,the United States mainly USES the substitute comparison method,which makes the calculation result more accurate,while Japan and Germany mainly use the comprehensive factor analysis method,which makes the operation relatively simple.At the same time,in the distribution of burden of proof,the infringer bears the main burden of proof in the United States,while Japan and Germany,on the one hand,reduce the burden of proof for the patentee by presumption,and on the other hand,require the infringer to bear more burden of proof by making an order through a document.In addition,Japan has established a system of assessors to assist judges in determining the amount of compensation.China's judicial practice has explored the application of technology allocation rules,and there are some relevant provisions in judicial interpretation,but there are still some problems such as the difficulty in accurately quantifying the patent contribution rate,the difficulty in proving the patentee,the small application scope of the technology allocation rules,and the excessive discretion of the judge.On the basis of the above research,the author puts forward some Suggestions to improve the application of technology allocation rules in the compensation of patent infringement.The first is to propose four calculation methods for determining the contribution rate of patents,which can be applied selectively according to the actual situation.The second is to reduce the difficulty of proof for the patentee through presumption,and require the infringer to provide the financial information related to the infringing product,and the infringer to prove the contribution rate of the patent involved.The third is to expand the scope of application of technology apportionment rules.The application of technology apportionment rules should be considered in the four calculation methods of loss suffered by the obligee,profit from infringement,multiple of license fee and legal compensation.The fourth is to clarify the exceptions to the application of the technology allocation rule,that is,in the case of malicious infringement and patent monopoly in the market,the technology allocation rule is not applicable but the whole market value rule is applicable;The fifth is to give play to the role of accounting firms and other appraisal institutions to assist the judge in calculating the amount of compensation,so as to make the compensation for damages more accurate.