Analysis Of Judicial Path Determination Intellectual Property Infringement Damage Compensation

In recent years, along with the increasing of IPR infringement cases, how todetermine the amount of compensation for infringement becomes the main problemin front of the judge. To clarify the basic theory of compensation for theinfringement of intellectual property rights, make the judgment more legitimacy andrationality, this paper according to the basic approach of the trial of cases ofcompensation for infringement of intellectual property rights in the judicial practice,from the overall perspective, analysis of each link to influence the amount ofcompensation for the infringement to determine the possible factors and difficulties,boils, step by step, finally obtains the amount compensation commensurate with thecase, so that the right people are properly monetary relief, so as to achieve thepurpose of protection of rights, encourage innovation.The first part is the judgment of infringement of intellectual property rights.Damages for infringement of intellectual property research is to determine thereasonable amount of compensation, the damage to the legitimate expectations of theright people better relief, and the starting point of all this is that exact determinationof tort. The author pointed out that through the analysis of the nature of tort in thecivil rights or civil rights and interests, to answer what is tort. On this basis, throughthe analysis of the claim of real right, the claim of intellectual property byintroducing the concept of damages for infringement of intellectual property rights,from a new perspective, deepen the understanding of the concept of tort andunderstanding. Of course, has the very strong practical significance through theaccurate definition of infringement of intellectual property rights.To determine the issue of tort in the number of traditional civil tort is not soprominent in intellectual property tort. In particular, the same person in the samerights infringement of copyright, patent, trademark and other intellectual propertyrights infringement, the resulting from the different time, place, carrier difference incases of infringement of intellectual property rights may conflict, from the basic law, substantive law and comparative law perspective, that will be the same a tort againstthe same rights of copyright, patent, trademark and other intellectual property rightsinfringement is not due to differences in the implementation of time, region andcarrier and as different tort, but should be seen as a tort, thus solving the should beseveral lawsuits and several compensation.The second part is about the intellectual property infringement damages liabilityprinciples and elements of the discussion. The author analyses the intellectualproperty infringement damage compensation liability principle commonmisunderstandings, from foreign law, national law, domestic law comprehensivelydemonstrates the rationality of the adoption of the principle of fault liability, threeelements for damage, fault and causality as damages for infringement of intellectualproperty, the nature and particularity of infringement of intellectual property rights.Aware of intellectual property rights, to determine the damage degree and scope,there exists great difficulty. Understanding of the fault by subjective and objectivesaid the combination of compromise. The degree of the infringer’s subjective state ofmind malignant, but also directly affect the efforts to punish the infringement of thelegal compensation, not not essential. Is very important to the infringement of thedegree of fault and fault judgment in the form of compensation in the infringementof intellectual property rights in the action. But, judging the infringement ofintellectual property rights have no fault degree and form is not easy. The deliberatedecision, more easily. Causality is a bridge, the behavior and the damage to connect.Much attention in practice. This phenomenon is one of the causes of damages forinfringement of intellectual property is difficult to determine the amount of. Throughthe analysis, identification of causal, and analyses its important roles in determiningthe amount of damages of the.Part third applies the principle of compensation for the infringement ofintellectual property rights. From the substantive law and judicial practice point ofview, the author believes that China’s intellectual property infringement damagecompensation principle only is the complete compensation principle and legalprinciple of discretion. In the judicial practice of compensation for the infringementof intellectual property rights, people are not the correct understanding of the relationship between the complete compensation principle and legal principle ofdiscretion. The complete compensation principle is the objective principle ofcompensation for the infringement of intellectual property rights, and the legalprinciple of discretion is intellectual property compensation method principle. Leavethe objective principle, the principle of method will become a, no roots, water, andleave the method principle, objective principle also is doomed to be unable to realize.The current judicial practice, the judge generally lack of objective principle attention,there is more research on the method of principle.Due to the continental law system will damage the function of compensation tofill the loss, almost no development of punitive damages. China’s trademark law hasadopted the punishing principle. The author based on the analysis of the elements ofthe concrete, punitive compensation principles in trademark infringement damagesshould be satisfied. And compares it with USA related system, obtains thecompensation calculated on the basis of different point of view.The fourth part determine compensation for intellectual property damage andimprove. Application, damage from several common methods used to determine theamount of compensation in order to introduce, then introduces the loss of the rightpeople, profits of the infringer and licensing difficulties, and hot fees reasonablemultiple specific application process need to pay attention to the problem, the legalcompensation when analyzed whether statutory damages the magnitude of increasepossible problems and patent can break through the minimum compensation problem.Finally, from the angle of legislation, judicature, technology, and put forwardreasonable body to determine the amount of intellectual property damagesrecommendations.