Research On The Amount Of The Patent Infringement Damages

With the development of economic and to establish an innovative country, especially after theThird Plenary Session of the18th Central Committee of the Communist Party of China, put forwardthe strategy of the innovation-driven development, pay more attention to the development of theintellectual property rights. On the one hand, the amounts of the patents applied and granted havegreat increased, our country is gradually developed from "made in China" to "created in China". Buton the other hand, the patent litigation have many problems, the important is that the damagecompensation in the patent infringement in different case may has different number,the influencefactors include the use of the legal compensation occupied high proportion, regional protectionism inpatent litigation and the large of the damage gap. Therefore, research on the amounts of the patentsinfringement damage compensation has an important meaning to the theory and judicial practice.This article analyze the problem from contrast the provision in our country and other countries,at the same time, I have put forward the relevant measures to perfect our country’s legislation. Thisarticle discussed the question from five aspects.The first part, introduction, mainly introduced the background and the significance of topic,furthermore, the contents and methods of the thesis. Third Plenary Session of the18th CentralCommittee of the Communist Party of China put forward the strategy of the innovation-drivendevelopment, prime minister li keqiang referred to the importance of the intellectual property, andthe reported that published by the state intellectual property office, all of the were emphasize theimportance of the patents. At the same time from contrast the difference of the legislation in differentcountries such as United States, Britain, Japan and so on, we can find some useful measures.The second part, mainly discusses the problems that exists in our patent infringement litigation,through the collection of cases that the Beijing first intermediate people’s court has trial about thepatents infringement damage compensations, we can find that the used of the legal compensationoccupied high proportion, regional protectionism in patent litigation and the large of the damage gap,the burden of the proof is too heavy.The third part, mainly analyze the principle of the patent infringement damage compensationamount. There are mainly two principle, include compensatory damages and punitive damage, insiston different principle may has different effect on the damages. Nowadays we insist on thecompensatory damage principle in order to fulfill the loss of the patentee.But the use of the punitivedamages in the trademark law, has provides a chance to apply the punitive damages in patent law.The fourth part, mainly analyze the four kinds of calculate methods about the patentinfringement damage and the problems that exist in the judicial practice. At the same time through contrasted the calculations that United States has adopted, we can find the drawbcaks in ourlegislation, so it provide many help to perfect our law.The fifth part, focuses on perfecting our institutional about the amount of the patentinfringement damages. We can establish the intellectual property court, expert jury system, themechanisms for punitive damages and intellectual property assessment. We need to establish asystem that accord to our reality to promote the development of the patents.