An Empirical Study On The Legal Compensation For Patent Infringement Damage

Patents are an important part of intellectual property,and they play an important role in market economy activities with their unique characteristics.With the vigorous implementation of the innovative driving development strategy in China,the judicial protection of patent rights associated with this has become an important measure to ensure the innovation results.In recent years,the number of patent infringement cases in China has been on the rise.Patent infringement damages are the main way to provide relief to patent owners.The determination of the amount of damages has always been the focus of attention in academic circles and judicial practice.Article 65 of the current Patent Law of China stipulates that:"The amount of compensation for infringement of patent rights shall be determined according to the actual loss suffered by the right holder due to the infringement;if the actual loss is difficult to determine,it may be determined according to the interests of the infringer due to the infringement.If the loss of a person or the benefit obtained by the infringer is difficult to determine,it shall be reasonably determined by reference to the multiple of the patent license fee.If the above is difficult to determine,the people's court may determine according to the type of patent right,the nature of the infringement and the circumstances.Compensation of more than 10,000 yuan and less than one million yuan." This article stipulates that China's patent infringement damages are subject to four calculation methods,namely,the actual loss suffered by the right holder,the profit of the infringer,the patent license fee and the statutory compensation,and the order of compensation is clarified.However,in the judicial practice,due to the difficulty of proof,the court's excessively strict evidence collection,and the court's ex officio application,the statutory compensation has become the main compensation calculation method in the court's determination of patent infringement lawsuits.This paper randomly selected the four provinces and municipalities of Beijing,Shanghai,Jiangsu and Zhejiang,which have many patent infringement cases in China through the Chinese referee documents,and conducted statistical analysis on the 1044 judgments on patent infringement damages in the five years from 2013 to 2017.The status quo of the application of statutory compensation for patent infringement damage and the problems of judicial application were sorted out.The 10,496 judgments were all applicable to 1036 cases of statutory compensation calculation method,the applicable rate reached 99.23%,and the legal compensation for patent infringement was in the judicial practice of our country.There is a trend of over-applied,and in the specific application,there are the following problems:the amount of compensation does not distinguish the type of patent right,the degree of subjective fault of the infringer is not considered,the reasonable amount of compensation is low,the difference of the amount of compensation is determined,and the reason for the compensation Insufficient,limited scope of compensation amount,etc.Because the "Patent Law" is too general in the provisions of the statutory compensation system,there is no specific refinement standard for discretion,and the unified scale is difficult to grasp.Based on the experience of extraterritorial use,the author puts forward positive measures on how to improve the statutory compensation system in China.Suggestions:First,appropriately reduce the proof standard of causality of damages and establish a scientific market evaluation system;second,consider the factors that determine the amount of compensation.The amount of statutory compensation should distinguish the type of patent rights,reflect the market value of patent rights,and fully consider the infringement.The subjective fault level and other factors that should be considered to refine the amount of compensation;the third is to increase the compensation for reasonable expenses,and all the necessary expenses for the right holder to stop the infringement should be fully supported;Fourth,adjust the scope of the statutory compensation amount,The current law stipulates that the minimum amount of statutory compensation is 10,000 yuan,but in some cases this requirement is significantly higher than the profit of the infringer,while in other cases the profit of the infringer is significantly higher than the upper limit of the statutory compensation.10,000 yuan;the scientific nature of the applicable statutory compensation should be improved,and the amount of statutory compensation should be Involved in its patent type,market value,innovation and the degree of subjective bad faith infringement and other factors combine to make the statutory compensation system can play a really protect the legitimate interests of right holders can effectively contain and deter infringement of a patent infringement action.