On The Application Of Judicial Deal In Patent Infringement

Through the combing and analysis of the situation of non-cessation of patent infringement in judicial practice and the relevant views of the theoretical circles,it is found that there are three main problems: different application conditions and standards,unclear application procedures,and unclear factors to consider the amount of "reasonable expenses".In view of the problem of different standards for the application of conditions,there are two situations in judicial practice that only cause damage to the public interest and cause serious imbalance of interests between the parties as the conditions for application.Considering only the public interest without considering the imbalance of interests between the parties may result in a result that is contrary to the balance of interests.In order to break the "patent jungle" and "patent blackmail" and stimulate the parties’ motivation to innovate,the serious imbalance of interests between the parties should be added as the applicable condition.The former is limited to the specific circumstances of patent infringement and does not form a set of general ideas for the situation where patent infringement does not stop,and the latter is even more ambiguous about what constitutes a violation of fairness and justice,and both views are difficult to apply in judicial practice.The determination of influencing factors should not be limited to the specific circumstances of patent infringement,and the relationship between the proportion of the infringing product and the patent involved in the case,the specific circumstances of the parties and the losses of both parties should be taken as the influencing factors for determining the serious imbalance of interests between the parties.In view of the unclear application procedures,in judicial practice,there are two situations: the court initiating ex official and the infringement’s application.The practice initiated by the court ex official has the position of violating the court’s mediation judgment,which to a certain extent will promote the trend of infringement.In order to prevent the waste of national judicial resources and to combat the "patent cockroach",the applicable procedure should be established according to the infringement’s application,clarifying that the infringes has the right of defense in the patent infringement lawsuit,and the infringes bears the corresponding burden of proof.In view of the unclear consideration factors for the amount of "reasonable fees",there are three views that the amount of "reasonable fees" is higher,equal and lower than the normal license fee.Practices that are higher than normal licence fees run counter to the principle of balance of interests,and practices that are equal and lower than normal licence fees are difficult to play a behaviour-oriented role.The amount of a specific "reasonable expense" should be determined by considering influencing factors in a case-by-case manner.There is a view that the characteristics of the patent itself and the characteristics of infringement are taken into account at a macro level,but this view does not enumerate the specific influencing factors.The specific amount of "reasonable expenses" should be determined by comprehensively examining the three influencing factors of the infringement’s infringement period,the value contribution rate of the patent involved to the infringing product,and the infringement’s subjective state of mind,so as to ensure the balance of interests between the parties.