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《Science of Law(Journal of Northwest University of Political Science and Law)》 2018-04
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The Identification of Causality on Damage for Profit from Patent Infringement

Xu xiaoben;  
Causation is he analysis tool in scope of patent damage compensation,while it is very hard to determine the contribution rate of specific patent technology in total product market profit of the infringing patent. Compared to conditional causation,the causal causation allows judges to refer to subjective value of the evaluation on judging causation in the context of the theory of legal causation. Consequently,to determine the contribution rate of the patent involved in the total amount of the infringer's profit is a subjective judgment with legal purposes. In the framework of causality,the judicial policy of"preventing infringement of infringers and encouraging rights protection"should be considered,to lower the protection risk of right holder and increase the cost of infringer. Therefore,it is necessary to change the calculation rules of the infringement profit distribution method in China's current tort law,and use the cost deduction method to gradually improve the judicial application rate of the infringement profit compensation rules and make the compensation for intellectual property rights with certainty and rationality.
【Fund】: 国家社会科学基金青年项目(17CFX033)“基于市场交易价值的知识产权损害赔偿计算规则研究”
【CateGory Index】: D923.42
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