| This topic is about China’s "intellectual property rights".China has continuously strengthened the application,protection and promotion of "intellectual property rights",especially invention patents.As a result,the number of patent applications in China has increased significantly over the long term.On the other hand,the mode of commercial activities using patent rights as a weapon has gradually been widely used.In response to the current government’s request for"strengthening patent protection" as one of the key tasks,in the face of the current situation that the amount of infringement compensation in court judgments continues to break new highs,and the "patent troll" that will inevitably occur with the increase in the amount of compensation The possibility of abusive litigation is based on the objective facts that the quality of patents in China is uneven and the legal awareness of enterprises is not sound enough,combined with the relevant provisions of Article 65 of the current patent law and related regulations,and the upcoming"Implementation" on June 1,2021 The Patent Law(Fourth Amendment),the development trend of the relaxation of the discretionary amount of infringement compensation resulting in a substantial increase in the amount of infringement compensation,by learning from the development status and trends of relevant foreign patent infringement damage systems,the value and utilization of patents in China Under the condition that the degree of patent infringement is generally not high,by regulating the patent infringement compensation system and controlling the trend of sharp increase in the amount of compensation,the current domestic and foreign practices,including patent piracy litigation methods,have a negative impact on the production and operation of enterprises.Under the environment,solve these domestic problemsThis article first describes the concept,characteristics and evolution of the patent infringement damage compensation system.Clarify the particularity of patent infringement in the civil law system and the particularity of compensation judgment.Furthermore,in conjunction with the establishment,development and changes of the patent law in China,it explains the current status of the patent infringement compensation system in China,and clarifies the current status of the instability of patent rights in China,and elaborates the legislative and judicial trends of the patent infringement compensation system in China,as well as patent infringement in China Problems in the determination of damages.The development of China’s patent system is relatively short.After four revisions,the patent system tends to be more perfect.Where there is infringement,there is relief.Among the methods of patent infringement relief,the most commonly used is damage compensation relief.In China,there are four ways of calculating damages for patent infringement,which are the losses suffered by the patentee,the benefits gained by the infringer,the multiple of the license fee,and the statutory compensation method.China’s current "Patent Law" came into effect on October 1,2009.Article 65 of which specifically stipulates the calculation method of damages for patent infringement.There are four types in total,which are based on the patentee’s infringement.According to the actual losses of the infringer due to the infringement,refer to the multiple of the patent license fee and the statutory compensation determined by the people’s court.In the "Patent Law(Fourth Amendment)" that will be implemented on June 1,2021,a punitive damages system is introduced,and the amount of punitive damages is set to "more than one time and less than five times the fixed amount." Furthermore,the scope of statutory compensation was revised to "more than 30,000 yuan and less than 5 million yuan".Then,this article analyzes the patent laws of foreign countries,especially representative Germany and the United States,analyzes the considerations of virtue as a representative of the patent infringement compensation system in patent litigation,and the determination of the amount of compensation by virtue,and then discusses foreign laws represented by virtue Measures to deal with patent piracy in China.This article analyzes the two judgment principles commonly used in Europe and the United States,namely,the profit lost by the patentee due to infringement,the profit gained by the infringer due to the infringement,and the royalties of the patent.Corresponding research is also mainly focused on three aspects,namely,the order of calculation method selection,whether to apply the principle of technology apportionment,and whether to apply the principle of punitive damages.There is controversy in the academic circles as to whether to choose the calculation method in a certain order.It can be said that the patentee can measure according to three methods:actual losses,benefits gained by the infringer,and reasonable licensing fees by analogy.The patentee can freely choose among these three methods.After the infringer has made compensation or the judgment is over,the patentee’s right of choice will become invalid.These three methods cannot be used in combination,and cannot be used cumulatively.Afterwards,based on the above theoretical basis,the current patent infringement compensation system under China’s patent system still has room for improvement,and the existing problems are analyzed,that is,due to the instability,ambiguity of China’s patent rights,and the difficulty of calculating benefits.The difficulty of the infringer and the complicated calculation methods of patent infringement damages have led to the problem of a large number of statutory compensations.In addition,due to the introduction of a punitive compensation system in China’s "Patent Law(Fourth Amendment)",the infringement The possibility of disputes over the calculation of quotas and the amount of fines has increased.Furthermore,in response to the above-mentioned problems,this article combines the foreign patent infringement compensation system,and proposes perfect suggestions from the perspectives of the granting of patent rights,the burden of proof for infringement compensation,and the calculation method of patent infringement compensation,and puts forward the restrictions and strictness of the judge’s discretion Two methods of punitive damages system are applied to improve the factors affecting the judgment of infringement.. |
