Research On Sino-US Patent Infringement Civil Relief

Recently, both the number of patent litigation and international patent infringement litigation are growing continuously. In order to deal with such litigation, it is of great significance to investigate through the patent infringement litigation in the legal system and judicial precedent in Germany and Japan (as continental system), as well as in the UK and the U.S.(as British-American system). Therefore, the theoretical foundation of the comparison between the US and Chinese civil remedies for patent infringement research will be laid.The United States patent law suggests that the enforcement of a preliminary injunction requires the plaintiff to demonstrate. It is however, not certain to win in this case. Consequently, the motion of issuing a preliminary injunction is often based on the validity of the accusation as well as the feasibility of enforcing the injunction. The prohibitive injunction in United States is the couter-part of stopping infringement, although their principals, scope of application, as well specific remedies vary. Currently, no terms in the Chinese patent law targets the violation of the injunction; therefore the court verdict is sometimes ignored by the defendants. The implementation of punitive damages is therefore necessary to protect intellectual property rights. On the other hand, in an attempt to counter the practice of patent trolling will be rejected, if the suspension of ongoing or future infringement is against the principal of free competition or it disserves public interest, provided that the damage of the claimant has been sufficiently replenished. The estimation of remedies is often the core argument in the court when claiming remedies for infringement of patent infringements, and the United States is deemed to possess a system better fitted in this regard. Under the US patent law, the lost profit of the claimant is estimated based on the "but for" analysis, with additional remedies for licensing fees and punitive damages, whereas the practice in China is calculating the remedy on the basis of profit loss of the claimant, illegal income from the infringement, licensing fee multiplication and statutory damages. It is proposed that when considering the remedies for patent infringement, the plausible cause-effect relationship between the losses of the claimant of the gain of the infringer should be emphasized provided the fact that the infringer benefiting from the infringement has been established. When it comes to determining the licensing fees, the US practice of exhausting the factors that affect licensing fees might serve as guidance. By adopting this methodology, the court’s interpretation of the law will be explained and explicit reasoning for the verdict will be provided. In practice, it is necessary to regulate and enforce such regulation on the remedy assessment process therefore the verdict can be justified.