The Study On Discretionary Compensation Of Intellectual Property Infringement Damages

Discretionary compensation of intellectual property infringement damages is a calculation of the loss of right holders, or profits of infringers, which originated from local judicial practice. As a creative exploration of our courts, the discretionary compensation appears in the judicial protection of typical case, its legal position and application are not clear, but there are many cases adopt this method in the judicial practice. Therefore, the discretionary compensation of intellectual property infringement damages is worth studying. This paper mainly includes the following content:The first chapter introduces the legitimacy of discretionary compensation of intellectual property infringement damages. It including two parts:the implementation of the nature benchmark of intellectual property infringement damage compensation and resolve the current problems of our country. Through introducing the international treaties, extraterritorial legislation and judicial cases, and the law and the practice of our country, concludes that intellectual property infringement damages compensation is compensatory. Combining with analysis on calculation of national reform, further demonstrate the intellectual property infringement damages compensation is compensatory. Point out that the introduction of the intellectual property infringement discretionary compensation in China is to rectify the deviation of compensatory damages calculation system. At the same time, through the review of legislation found that discretionary compensation and statutory compensation is the balance between objective standard and the judge discretion, but the discretionary compensation of intellectual property infringement damages has the obvious superiority. It provides the theoretical support for the introduction of discretionary compensation. The second chapter rethinks the current problems of discretionary compensation of intellectual property infringement damages from law and practice. Based on the cases used discretionary compensation, point out that discretionary compensation is always used to break out the limit of statutory damages. Meanwhile, there are a few problems:the differences between discretionary compensation of intellectual property infringement damages and current calculation method are not clear, the applicable conditions is not enough, free evaluation of evidence through inner conviction is not published fully. The third chapter analysis the discretionary compensation of intellectual property infringement damages from the perspective of comparative law. Introducing the determination of reasonable damages in Japan and Taiwan region which is similar to the discretionary damages in our country, then find the differences in fundamental means of discretionary damages, consideration factors, applicable conditions and other calculation methods, and look for the reasons. The fourth chapter draws a conclusion that the fundamental means of discretionary damages are the loss of right holders and profits of infringers and it should not be expanded to license fee; we should promote the discretionary damages and keep statutory damages as the finally supplement; strict limits to the applicable conditions are also indispensable; we ought to expand the considerations to the procedural factors; the free evaluation of evidence through inner conviction about consideration factors ought to be published fully.