以专利财产价值减损作为侵权赔偿额计算依据的探讨——兼评《专利法》第65条

Discussion on the Calculation Method of Damages for Patent Infringement on the Perspective of Value Reduction of Patent Right Property——View Article 65 of China Patent Law

专利侵权损害赔偿额的计算方式是专利权司法保护的热点和难题。现行《专利法》第65条第一、二款规定的四种损害赔偿额计算方式有顺位限制,优先适用专利权人的实际损失计算方式,该计算方式对获利能力较弱企业的专利财产保护不利。在转型发展期,我国应把专利权作为一种财产,将专利侵权造成的实际损失确定为专利财产价值的减损,包括专利权人产品降价导致的专利财产价值损失和侵权产品销售导致的专利财产价值流失。

The calculation method of the amount of damages for infringing a patent right is a hot issue relating to the patent protection.There are order restrictions on the application of the four calculation methods of the amount of damages provided in the provisions of paragraph 1 and paragraph 2 of Article 65 of China patent law , among which the losses suffered by the patentee has priority, which is a disadvantage to the enterprises that have weak profitability in protection of their patent rights.In this period of developmental transformation ,China patent law should establish a point of view that a patent right is a property , and should reconstruct the calculation method for the losses suffered by the patentee as the value reduction of patent right property, which includes the value reduction of patent right property caused by the price cut on patentee＇ s products and by the sale of the infringing produets,in order to encourage the innovation of the native enterprises,and to make correct understanding on the realvalue of patent right property.