专利侵权损害赔偿额计算中的技术分摊规则

The Rule of Technical Apportionment in the Calculation of Patent Infringement Damages

技术分摊是专利侵权损害赔偿额计算中适用的规则,它剔除了非专利因素创造的利润,使赔偿数额的计算更为科学合理。在英美法系的美国和大陆法系的日本,技术分摊规则的理论研究和司法运用有着悠久的历史,形成了许多技术分摊规则的理论学说和经典判词,颇具借鉴意义。我国司法实务中已经出现适用技术分摊规则的案例,但其操作比较粗放、随意,建议我国以市场价值分析法确定技术分摊比例,并由侵权人承担举证责任,以使损害赔偿额的计算更加精细化、科学化。

Technical apportionment is the general rule in the calculation of patent infringement damages. This rule eliminates the profits which are not created by the patent technology and makes the calculation of the damages more scientific and reasonable. In America and Japan, which represent the common law system and the continental law system respectively, the theoretical research and judicial application of technical apportionment have a long history and so numerous theories as well as classical court verdicts have been created, which we can use for reference. In the judicial practice of China, technical apportionment rule has already been applied in some cases, but the operation is always extensive and haphazard. In order to make the calculation of infringement damages more accurate and scientific, we should measure the technology apportionment proportion by the market value analysis method and assign the burden of proof to the infringer.