Winning the lawsuit, but not getting much compensation, or even losing the market, is an embarrassment for the obligee in many intellectual property cases.
"For a long time, China’s judicial practice has been plagued by the difficulty in calculating the compensation for intellectual property damage and the low amount of compensation awarded, and the trial of intellectual property cases is widespread ‘ Argument on emphasizing infringement and neglecting compensation ’ The phenomenon. Due to the lack of clear reasoning about the amount of damages in the judgment, both the original defendant and the defendant were unconvinced by the verdict. " Wu Handong, director and professor of the Intellectual Property Research Center of Zhongnan University of Economics and Law, pointed out at the "Seminar on Judicial Protection of Intellectual Property".
On the occasion of the 16th World Intellectual Property Day, the Publicity and Education Guidance Office of the Central Political and Legal Committee and the Institute of Applied Law of China, the Supreme People’s Court jointly held a seminar on judicial protection of intellectual property rights. Experts and scholars from academic and practical circles have conducted in-depth discussions on the worldwide problem of determining the amount of compensation for intellectual property damage and put forward solutions.
It is common that the amount of damages is low.
In the face of repeated prohibitions of intellectual property infringement, many experts pointed out that an important reason is that the amount of damages is not enough to effectively deter infringement.
Through data analysis, the Intellectual Property Research Center of Zhongnan University of Economics and Law found that in copyright cases, the proportion of "actual loss", "illegal income" and "legal compensation" adopted by the court was 21.21%, 0.25% and 78.54% respectively. In trademark infringement and patent infringement cases, the proportion of "statutory compensation" is as high as 97.63% and 97.25% respectively. Wu Handong believes that excessive application of statutory compensation is a prominent feature of the judicial organs’ determination and amount calculation of intellectual property damage compensation in China.
The calculation of damages is low, which is another feature of judicial organs in the trial of intellectual property cases. Wu Handong pointed out that the average compensation for more than 97% of patent, trademark infringement and more than 79% of copyright infringement cases in China is 80,000 yuan, 70,000 yuan and 15,000 yuan respectively, which is lower than the same patent licensing fee, advertising fee for cultivating trademark awareness or the average remuneration for similar works.
"Between 2009 and 2013, the median amount of total compensation for patent litigation in the United States was as high as $4.3 million. Compared with the amount of compensation awarded in intellectual property litigation in developed countries, the problem of low amount of compensation for intellectual property damage in China is objective. " Wu Handong said.
Li Mingde, director of the Intellectual Property Center of China Academy of Social Sciences, also pointed out according to data analysis that in copyright infringement cases, the amount of compensation for each work mostly ranges from several thousand yuan to 20,000 yuan. In patent infringement cases, the average amount of damages is about 80 thousand yuan. This is in sharp contrast with the amount of copyright damages of tens of thousands to hundreds of thousands of dollars and the amount of patent damages of millions to tens of millions of dollars in the United States and other western developed countries.
The cost of patent research and development should be taken as an important reference factor.
According to Yin Fenglin, an associate professor in the Department of Law and Intellectual Property, Chinese Academy of Sciences, how to effectively improve the compensation standard for patent infringement in China to a reasonable level is not only related to the interests of patentees, but also related to the implementation of the national innovation-driven development strategy.
Yin Fenglin pointed out that there is an obvious direct correspondence between the patent price and the amount of patent infringement compensation. "According to the analysis of statistical samples, the average amount of patent infringement compensation in China is less than 100,000 yuan. Suppose the court decides that the amount of infringement compensation for a patent is 100,000 yuan, then the patent transfer price or price given by the patent technology user will usually not exceed 100,000 yuan. But in fact, the average technology research and development cost of each patent application in China is 441,000 yuan. "
"It can be seen that the amount of patent infringement compensation and patent price in China are far lower than the research and development cost of patented technology. It is an exaggeration to say that if we rely on patent protection for technology research and development in China, we will not only make profits, but will generate huge losses. " Yin Fenglin said.
Yin Fenglin believes that to solve this dilemma, the fundamental policy is that the amount of patent infringement compensation should be higher than the R&D cost of patented technology, and the people’s court can take the R&D cost as an important reference factor when applying the calculation method of statutory compensation.
"At present, the calculation method of compensation for intellectual property damage in China usually adopts the principle of leveling, that is, how much the right holder loses and how much the court orders the defendant to compensate, which greatly underestimates the actual value of infringed works, patented technologies, designs, trademarks and trade secrets." Li Mingde said.
He said that if the court can determine the loss of the obligee, the benefit of the defendant or a reasonable multiple of the license fee based on the market value of the relevant works, patented technology, designs, trademarks and trade names, rather than simply based on the value of the created works, designs and trademark products themselves, it can award the obligee a reasonable amount of damages.
The amount of compensation should conform to the law of market value
"The ultimate concern of justice lies in justice, and the amount of compensation conforms to the law of market value, so the people can feel justice; In violation of the law of market value, the people will feel unfair. " Lin Guanghai, vice president of Guangzhou Intellectual Property Law Institute, said frankly.
Lin Guanghai believes that compared with punitive damages, it is more operable and predictable to determine tort compensation from market value, which can better balance and balance the innovation incentives for the creation and application of intellectual property rights.
"Determining the amount of damages from the perspective of market value can not only make up for the loss of the obligee, but also convey the concept that intellectual property rights are valuable to the society and warn potential infringers not to do things that violate the rules." Li Mingde said.
Li Mingde further pointed out that the amount of damages thus determined will also make the infringer realize that instead of paying high damages for infringement, it is better to seek permission to use related works, patented technologies and designs after paying reasonable fees. On this basis, the court can also apply two to three times the high damages to those malicious infringers or repeated infringers, forcing them to either go bankrupt or return to the normal market competition order.
"In addition, we should also highlight the important role of criminal punishment in cracking down on and preventing intellectual property crimes, innovate the prosecution system of intellectual property crimes, lower the threshold for criminal infringement of intellectual property rights, and improve the deterrence of criminal judicial protection of intellectual property rights." Wu Handong said.
However, Lin Guanghai also pointed out that there is no "standard answer" to the specific amount of compensation in a case, and it is usually not "zero cost" for the parties to obtain fair compensation. Therefore, the judicial judgment of intellectual property rights must fully analyze the law, correctly reflect the characteristics of the market value involved in the case, reasonably balance the interests of all parties, and prevent money from overriding everything. (Guangming Daily reporter Yin Wei)
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