专利侵权损害赔偿的数额

On the Amount of Compensation for Patent Damage

计算损失时,专利法仅考虑"实际损失"与完全赔偿原则出入较大,解释论上应作扩大解释;立法论上对于许可费损失等非难以量化的间接损失在加害人有故意的条件下,应纳入赔偿范围。对于规模经济带来的益处等特别遥远、发生概率较低的潜在损失具备悖俗和故意两个要件亦应考虑。证明因果关系时,勿强求流失利润与销量间高度因果联系之证据;但确定预期利润损失时仍应采"盖然性"的证明标准。适用获利法时,法院可调取税务部门的纳税记录间接确定;专利权人营销能力和制造能力不足以达到侵权专利实施品数量时,要减少利润的核定。适用法定赔偿时可依数量、加害行为、侵权行为人、主观状态细化并参照损失法上的不同法益位阶酌定损失。

When calculating the loss, it is unreasonable for patent law only to consider'the actual loss'which is different from the principle of full compensation, and so the amplified interpretation should be added in the interpretation theory. In the legislative theory, the indirect loss, such as the loss of the license fee, should be included in the scope of compensation under the condition that the offender is intentional. The vulgar and deliberate should also be considered for the benefits of economies of scale, such as remote, low probability of occurrence of the potential loss. To prove the causal relationship, we do not insist on the evidence of the highly causal linkage between the loss of profit and sales. However, when we determine the expected loss of profit, we should adopt 'probability'as the standard of proof. When the profit method is applied, the court may indirectly determine the tax records of the tax department; When the patent holder's marketing ability and manufacturing capacity are not enough to achieve the quantity of infringing patent products, the profit verification should be reduced. When applying the statutory compensation, we can decide the loss according to the quantity, tortious action, the infringement person, subjective state of refinement and referring to the Loss Method on different position of legal interests of discretionary loss.