|其他題名: ||Damages Calculation in China Patent Law and Practice: Perspective of Third Amendment ot Patent Law|
Patent Law;Patent Infringement;Damages Calculation;Statutory Damages
|上傳時間: ||2016-09-05 11:39:36 (UTC+8)|
With national intellectual property strategy to improve the domestic capacity of innovation and to build an innovative country, the third amendment to Patent Law of the People's Republic of China becomes in effect in October 1, 2009. Before the amendment, the amount of compensation for the damage is based on the loss suffered by the right holder or the profit earned by the infringer through the infringement; if it is difficult to determine the right holder's loss or the infringer's profit, the amount is assessed by reference to the appropriate multiple of the amount of royalty of that patent under contractual license. In the event that none of these amounts can be fairly ascertained, the court has the discretion to award compensation in the range of RMB 5,000 to RMB 500,000, provided by a Supreme People's Court judicial interpretation. The Article 65 in the new Patent Law codifies that the amount of compensation for the damage caused by the infringement of the patent right shall be assessed on the basis of the actual loss suffered by the right holder; if the actual loss is difficult to determine, it may be assessed on the basis of the profit earned by the infringer through the infringement; if it is difficult to determine the right holder's loss or the infringer's profit, the amount is assessed by reference to the appropriate multiple of the amount of royalty of that patent under contractual license. The Article 65 also codifies the statutory damages in the range of RMB 10,000 to RMB 1,000,000. In the perspective of litigation costs, statutory damages award may be a more economic approach. However, this approach could have implication caused by subjective judgment without the base of factual evidence. The Article 65 also codifies that the amount of compensation shall include reasonable cost by the right holder for stopping patent infringement. It is unclear that how to determine the reasonable cost for preventing patent infringement. Although the new Patent Law does not provide punitive damages, under the policy of strengthening patent enforcement and enhancing legal liability, the maximum statutory damages is doubled and other related civil liability and administrative penalty are raised. New Patent Law may increase the pecuniary burden of the infringer and expect to lead to more deterrent effect on patent infringement and hence enhance innovation.
|關聯: ||政大智慧財產評論, 7(2), 39-84|
NCCU Intellectual Property Review