Research On The Application Of Patent Infringement Damage Compensation Standard

The "Patent Law" revised for the fourth time in 2020 has adjusted the compensation standards for patent infringement damages in my country to a certain extent: the two compensation methods of the patentee’s actual losses and the infringer’s illegal profits are classified as the same applicable order;The upper and lower limits of the statutory compensation amount have been greatly increased;the punitive compensation system has been introduced.Whether these systems can better solve the problem of compensation for patent infringement damages in judicial practice and realize the protection of the rights and interests of both parties needs to be further explored.There are still some problems in the application of the revised Patent Law on the compensation standards for patent infringement: the application of the punitive damages system must be based on the actual loss,the profit from infringement,and the multiple of the license fee.The application ratio of these three compensation standards is very low,resulting in poor applicability of the punitive compensation system;judges have too much discretion in determining the amount of statutory compensation,which may lead to unfair judicial application;the lower limit of statutory compensation is too high,resulting in an imbalance in the interests of both parties;the high statutory compensation amount will trigger patent rights protection lawsuits,and even lead to patent abuse,resulting in excessive occupation of judicial resources.In addition,problems such as the low utilization rate of compensation standards such as actual losses that have existed for a long time in the compensation for patent infringement damages have still not been resolved.In response to the above problems,through comparative research on the relevant provisions and practices of compensation for patent infringement damages in the United States,Germany,and Japan,combined with the reality of my country’s judicial practice,it can be improved from the legislative and judicial levels.At the legislative level,it can be considered to cancel the order of application of the three compensation standards of actual loss,profit from infringement and multiple of royalties,allowing right holders to choose freely and flexibly;optimizing the preconditions for the application of the punitive compensation system,allowing statutory compensation and punishment Compensation for simultaneous use;cancel or reduce the lower limit of the statutory amount of compensation.At the judicial level,the specific application conditions of the statutory compensation system can be further refined to standardize the discretion of judges;in the judgment of intentional and serious circumstances,the specific status of the patent right,the mode of infringement,the duration of the infringement and other factors should be comprehensively considered In practice,the applicability of three compensation standards such as the concept of marginal profit,the optimization of technology allocation rules,and the introduction of virtual license law to improve actual losses can be adopted.