| The patent law of China stipulates four kinds of compensation calculation methods for patent infringement damages,and clearly defines the order of application.Through the empirical study of 1105 patent infringement cases,this paper finds that a large number of legal compensation is applied in practice,accounting for 92.6% of the cases in this paper.In the case of non-statutory compensation,the proportion of cases applying the calculation method for the profit of infringer is higher.Compared with the cases using other calculation methods,the average compensation and claim amount in the cases applying statutory compensation are relatively low,but low average compensation does not mean "low compensation".The excessive application of statutory compensation may be due to the low quality of patents and the inability of the obligee to prove evidence.Through in-depth analysis cases applying different calculation methods,the conditions required for applying the "non-statutory compensation" calculation method to determine the amount of compensation are studied,including but not limited to the determination of sales volume,profit margin and other relevant data,the form of license contract in the reasonable multiple of license fee.This paper suggests that the calculation methods should be applied to specific torts separately in the same case;the principle of comprehensive compensation should be clarified;the excessive application of statutory compensation should be reduced;the calculation method should cancel the application order,etc.In general,if the first two methods cannot be applied to the determination of the future compensation,the legal compensation shall be the main one,and then be gradually changed into a reasonable multiple of the license fee. |
