Calculation of Damages in Patent Infringement-Centered on Recovery of the Infringer''s Profits
Date Issued
2014
Date
2014
Author(s)
Hashimoto, Ai
Abstract
The system of patent infringement damages is a crucial factor in determining whether the patent system is effective or not. To calculate the damage suffered by a patentee, no infringement is presumed to have occurred in the economic market. However, since market factors are varied and variable, intertwining with one another, it is in practice impossible to arrive at a correct or precise answer in the calculation of damages as in arithmetic.
To lessen the patentee’s burden of proof, therefore, Article 97 et seq. of the R.O.C. Patent Act specifically provide for the calculation methods. In particular, it is apparently common for patentees to apply the method in Subparagraph 2, Paragraph 1.
Yet, such calculation methods does not conform to the system of damages under the Civil Code. While the provision on punitive damages was struck out in the 2011 amendment to the Patent Act by reason that it “fails to conform to the general system of civil damages regarding the remedy of damage," it was reinstated in the 2013 amendment on the grounds that “the calculation of damages for infringement upon intellectual property rights is not limited to the remedy of damage.” In this case, whether the relationship between the damages system under the Civil Code and patent infringement damages can be clarified in legal practice in Taiwan is not unquestionable. The situation will also give rise to contradictory and inconsistent court interpretations of such calculation method. In view of the fact that claims of patent infringement damages have become an important means of business competition nowadays, the inconsistency may impact industrial development thus is not appropriate.
Three research methods have been employed in this thesis: The first is document analysis of current interpretations by scholars and practitioners of Subparagraph 2, Paragraph 1 of Article 97 of the Patent Act. The second is review of the discovery process of a patent infringement suit. Both the calculation method and discovery method affect the calculation of damages for patent infringement. Only when these two methods are properly adjusted and employed will the legislative purpose of the patent system be achieved. The third is comparative research, whereby German and Japanese laws are introduced to elucidate the interpretation and development of the calculation method based on the profit earned by the infringer as reference in the interpretation and application of R.O.C. laws.
This thesis consists of seven chapters: Chapter 1 outlines the purpose and framework of the thesis, and scope and methods of research. Chapter 2 studies the features of patent infringement damages. Chapter 3 presents and compares the methods of calculation of patent infringement damages under German, Japanese and R.O.C. laws. Chapter 4 compares and examines the relationship between the calculation method based on the profit earned by the infringer and the damages system under the Civil Code under German, Japanese and R.O.C. laws. Chapter 5 compares and examines the specific application of the calculation method based on the profit earned by the infringer under German, Japanese and R.O.C. laws. Chapter 6 presents the discovery process of a patent infringement suit. Chapter 7 concludes the research results in the preceding chapters.
Subjects
專利權
專利侵權
損害賠償
損害計算
填補損害
侵權人所得利益計算方法
Type
thesis
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