Research On Introducing The Unjust Enrichment-Return Institution Into Innocent Infringement In Patent Law

In traditional academic theoretical research,the settlement of patent infringement disputes mainly relies on infringement theory,and the investigation of the infringer’s liability for damages is always an important remedy.Patent Innocent Infringement as a patent infringement act clearly stipulated in Chinese Patent Law has exempted the patent infringer from damages.However,the Patent Law has not made a clear response to whether infringer should bear other civil liabilities.The patent monopoly right of the patentee has been infringed yet there is no judicial remedy whatsoever.First,it is difficult to lodge a complaint against the party of the infringing product since patent infringement is often well-concealed.Second,the extent of compensation for the patentee is often limited to the sales volume of the infringing product based on the infringement theories even if the producer is located,yet it is unable to compensate the losses such as downsized market share and decreasing profitability due to the innocent infringement.Again,the terms of the existing patent law exempt the liability of the discontinuation of the infringer,further expanding the losses of the patentee.The main point of this issue lies in interests,which means how to re-balance the interests between parties with effective regulations.Therefore,the solution must focus on their interests.The characteristics of the profits obtained by patent infringer due to infringement are in full compliance with the constituent elements of the Unjust Enrichment-Return Institution.The Unjust Enrichment-Return Institution,as an important part of the field of private civil law,aims to exclude the benefits received without legal reasons,not taking the subjective fault of the beneficiary as a constituent element,which is an effective remedy for the patentee.After depriving the infringer of its profits by infringement,not only will the losses of the patentee be compensated,but also the infringement can be avoided in the future by adding adverse burden on the infringer.In terms of Innocent Infringement in Patent Law,the patentee shall be entitled to receive civil remedy accordingly.Based on that,this article first analyzes the current situation and dilemma of the Patent Innocent Infringement Liability Institution in China so as to clarify its operation status.Afterwards,it focuses on the applicability of the Unjust Enrichment-Return Institution in Patent Innocent Infringement Liability Institution,namely whether the deprivation of the profits by infringement is against the innocent infringement liability system,and whether the infringer is required to assume compensation in a disguised form.By confirming the question above,it will be helpful to remove relevant theoretical obstacles and lay an appropriate foundation.Once again,by citing the extraterritorial experience of introducing the Unjust Enrichment-Return Institution in the Patent Innocent Infringement Liability Institution and the legislative foundation and institutional origin in China is performed to strengthen the above arguments as far as possible.Finally,it is expected to improve China’s Patent Innocent Infringement Liability Institution by establishing a specific path plan for the introduction of the Unjust Enrichment-Return Institution.