Font Size: a A A

Research On The Determination Of License Fee Losses In Patent Infringement In My Countr

Posted on:2024-06-28Degree:MasterType:Thesis
Country:ChinaCandidate:Z ZhangFull Text:PDF
GTID:2556307067970949Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Unlike damages arising from infringement of tangible objects,damages arising from patent infringement are special in nature.In the determination of damages for patent infringement,the "difference theory" as a benchmark for measuring the existence of damages has two limitations: firstly,it cannot be adapted to the diverse situations of patent infringement;secondly,it is difficult for the right holder to obtain full compensation.Therefore,under the theoretical framework of the "normative damage theory",the loss of licence fees,as the loss of market trading opportunities for the patentee,is justifiable.China’s current patent infringement damages system does not provide for the compensation of loss of licence fees,which is independent of loss of profits.On the one hand,in the case of both loss of licence fee and loss of profit,this loss of licence fee is covered by loss of profit,and the amount of compensation calculated through the actual loss calculation method and the infringer’s profit calculation method will exceed the loss suffered by the right holder,which is contrary to the principle of equity and the principle of prohibition of gain.On the other hand,the reasonable licence fee rule,which should only be used to calculate the licence fee,has been misused to calculate the overall infringement loss of the right holder in China.The "integrated calculation model" adopted by the US and Japan,which distinguishes between lost profits and lost license fees,and applies different calculation methods and allows for the combination of the two,is of reference significance.Through a comparative analysis with the foreign rules on reasonable licence fees,the relationship between compensation for loss of licence fees,compensation for loss of profits and statutory compensation will be clarified.On the other hand,the current method of calculating reasonable multiples of licence fees in China can be improved from two perspectives: changing the analysis of the established licence fee as a factual determination and reverting to the traditional compensation function.The future legal improvement of the system for calculating damages for patent infringement in China should be optimised from two perspectives: the substantive law dimension and the procedural law dimension,based on the distinction between loss of profits and loss of licence fees.In the substantive law dimension,certain adjustments should be made to the current system of patent infringement damages constructed in Article 71 of the Patent Law and the "Certain Provisions" of the Supreme Court,specifically: allowing the combined application of different types of calculation methods,abolishing the rule of statutory order of application of calculation methods,and developing and refining the compensation for loss of royalties as a In the dimension of procedural law,there is a need to improve the rules of proof and regulate the discretion of judges.
Keywords/Search Tags:Patent Law, reasonable royalty, lost Profit, Patent infringement, Damages
PDF Full Text Request
Related items