Empirical Study on Compensation for Patent Infringement by Technology Fields in China

• Main Authors: Chu Jung Mei, 朱蓉美
• Other Authors: Wen-Chieh Wang, Ph.D.
• Format: Others
• Language: zh-TW
• Online Access: http://ndltd.ncl.edu.tw/handle/64222145799926262755

碩士 === 國立政治大學 === 法學院碩士在職專班 === 101 === The Chinese government has been actively planned itself to be an innovation-oriented country, which results in a dramatically growing in patent applications. It has a significant increase in terms of the applications as well as the litigation cases. In 2011, the China regional district courts had newly received 59,612 IP civil cases of first instance, an increase of 38.86%； in 2012, 87,419 IP civil cases of first instance were received, rising to 45.99%. Nevertheless, China has always been criticized for its lower amount of compensation for patent infringement. The expenses incurred for the investigation are out of proportion to the compensation. With increasing Taiwan investment in mainland China, the study of Chinese laws has become an urgent matter. Based on 9656 patent Infringement lawsuits, the study tries to observe with an empirical approach, and explores the connection between all kinds of patent infringement cases and the amounts of compensation, from various aspects of patented technology classification, identity type of litigant, region and province type. The empirical study has found： 1. The vast majority of Chinese patent infringement lawsuits are resulted in mediation settlement. The future direction for the policy will facilitate the increasingly quick settlement in mediation. 2. 95% of the Chinese patent litigations are applicable to awards of statutory damages, and however, in accordance with the guidance of the Supreme People’s court and the preponderance of evidence as a strategy, award damages limited to the statutory maximum can be broken through. 3. The high awards of statutory damages are often applicable to the secondary order of “the profits for the infringer by infringement”. The preponderance of evidence provided by foreign enterprises should use net operating profit in Chinese market accordingly. 4. For Chinese patent litigation, awards of statutory damages cannot be determined by the average, as there is a huge gap between its maximum and minimum. The highest award judged by the court was 50 million RMB, and the highest meditation settlement was 1.3 billion RMB. 5. The patent type is not the leading factor in determining the amount of compensation. Among three patent types, the average damage awarded in utility model patent cases is the lowest. However, in meditation the compensation can exceed billions of RMB. Hence, using mediation as a strategic advantage in litigation can help strive for the interests of patentees. 6. The foreign plaintiff win rate was 78% in Beijing, 73% in Shanghai, and 51% in Guangdong. The domestic plaintiff win rate was 86% in Guangdong, 80% in Zhejian, and 71% in Beijing. 7. The invention patents could be awarded high amount of compensation. The highest amount of compensation awarded by a domestic enterprise as a plaintiff was 50 million RMB, by a foreign investment company as a plaintiff was 10 million RMB, and by a foreign company as a plaintiff was 5.6 million RMB. 8. Among invention patents, the average compensation awarded in part C： chemistry field was the highest (29,814,198 RMB)； among utility model patents, the average compensation awarded in part H： electricity field was the highest (1,200,000 RMB)； among design patents, the average compensation awarded in part B： transport operation field was the highest (21, 160, 000 RMB). 9. The majority of litigations were from the building materials. It could be caused by China’s open real estate policy, and promoting the implementation of urbanization. There were a lot of litigations related to the field of game equipment and toys, and they were mostly centralized in Guangdong province since it's the world’s largest toy manufacture base.