专利非实施主体诉讼中损害赔偿规则的适用

On the Application of Rules of Damages in Patent NPE Litigation

作为一类特殊的权利人,NPE是否应当适用特殊的行为引导规则存有争议,对禁令问题的讨论即为争议的表现。损害赔偿也是重要的行为引导规则,探索该领域的政策空间对于处理未来可能出现的NPE诉讼具有理论指导作用。与表面所展示的客观化基调相反,填平原则实际上蕴含着丰富的弹性,提供了充分的政策腾挪空间。弹性源于专利损害赔偿的高度复杂性,法院只有借助信息中介才能将损害赔偿的计算难度控制在与其精确激励相比而言适当的范围内,而信息中介的选取具有相当的开放性。如果经验表明主体身份与诉讼行为社会效果之间存在相当因果关系,那么从理论上讲主体身份未尝不能成为认定损害赔偿时的考虑因素。不过从现阶段情况观之,NPE身份与诉讼行为社会效果之间并未表现出明显相关性。在可预见的将来,这种相关性很可能也不会出现。与主体是否为"非实施主体"相比,争议客体"未被实施"的事实更适合作为计算损害赔偿的信息中介。技术方案是否实施的事实会对损失计算方法的选择和规则适用造成影响。为了实现合理认定NPE损害赔偿数额这一目标,我们应当更充分地探索利润损失与合理许可费的差别,改造现行许可费计算方法条款,并且充分发挥包括诉讼费用在内的广义经济救济工具的行为引导作用。为了维护创新的累积性,专利案件适用加重赔偿本来就需格外谨慎。NPE诉讼更是通常不考虑加重赔偿。

There has been a lasting debate as to whether NPE should be treated differently when it comes to injunctions. A similar but under-discussed issue is whether NPE should be treated differently when it comes to damages. Contrary to the possible intuition that there’s no way for legislators or judges to take the plaintiff’s status into consideration under the principle of total restitution, this principle does encompass enough flexibility to allow judges to treat NPE less favorably. The flexibility of the principle has its root in the complicity of the calculation of damages for intellectual property. The complicity is such that the judges cannot manage it without informational proxies. As long as a variable has shown strong correlation or even causal relationship with damages, this variable may have a place in the analytical framework to simplify future calculation. There is no per se obstacle to view the status of the party as informational proxy. However, at least in China, there is no evidence yet, and there may not be evidence in the near future, to show that a party’s being NPE bears strong correlation to lowered damages. Instead of looking into whether the plaintiff does not practice any patent, it is more useful to analyze how does the fact that plaintiff has not practiced the patent at issue affects the proper way of calculation. Whenever a plaintiff does not practice the patent at issue, regardless of whether he practices his other patented technologies, he shall receive damages based on reasonable royalties instead of lost profi t(at least instead of lost profi t in a narrow sense). The current legislation put unnecessary restrictions on the rule of calculating damages from the perspective of royalties, requiring on one hand established royalty, on another hand that the established royalty be adjusted upwards instead of downwards. Such restrictions have unnecessarily narrowed the scope of application of the rule, thus pushing the cases which can be calculated on the base of comparable license to the unstructured rule of statutory damages. In order to channeling these cases back to the calculation rule based on license fee, the current license rule need to be revised from an "established royalty rule" to "reasonable royalty rule".