Determining Damages for Patent Infringement in Chi

Authors: Jingjing Hu

Publish Date: 2016/02/01

Volume: 47, Issue: 1, Pages: 5-27

PDF Link

Abstract

This article examines the determination of damages for patent infringement in China Based on empirical data Chinese judicial precedence and judicial interpretations this article depicts how the size of damages for patent infringement is determined through three methods the patentee’s actual loss the infringer’s profits and reasonable royalties and statutory damages in China In particular it makes a comparison between Chinese and German approaches The comparison finds that Chinese courts have insisted on unrealistic standards of proof on the part of patentees for entitlement to the three methods Therefore this has relegated the patentees to statutory damages that are not designed to compensate their losses in most patent infringement trials This article suggests easing the burdens of proof for the patentees under the three methods while strictly observing the restriction on recourse to statutory damagesThis article was completed during a scholarship stay at the Max Planck Institute for Innovation and Competition Munich Germany The author would like to thank Dr Thomas Jaeger for his supervision Dr Viola Prifti for kindly proofreading this article Dr Sujitha Subramanian Vikas Kathuria and Florian Paschold for their kind help and suggestions

Keywords: