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《Science of Law(Journal of Northwest University of Political Science and Law)》 2018-04
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Determining Damages for Patent Infringement under German Law——Focus on Pat. art.139 and ZPO art.287

Hu Jingjing;  
In the process of the fourth amendment to the Patent Law of PRC,the"difficulty in proofing"is considered as a problem. In practice,the application of the triple methods( actual losses,infringer's profits,reasonable royalties) provided by the article 65 paragraph 1 of the patent law is much lower than that of the statutory damages. The reason simply lies at the difficulty in proofing. In Germany,the court also apply the triple damages to determine damages. The"difficulty of proofing"problem does not arise. Instead,the damages regime appears flexible and sensible. It ascribes to two categories of legal technologies. One is "the legal presumption"in general sense. The lost profits and the infringer's profits are seen as legal presumption that can be partly disproved,while the method of reasonable royalties is legal presumption that cannot be disproved. Accordingly,the burden of proof drives from the right holder to the infringer,and the process of proving the casual link gets simplified. Another is "the damages determining regime"stipulated in article 287 of the German Civil Procedure Law. It aims to easy the proofing standard set by the article 286 " free evaluation of evidence through inner conviction". Thus,it is not required to prove the accurate number of losses; the plaintiff lives up to his burdens of proof when he or she provide evidences supporting happening and the general range of patentee's losses. Then the court at its discretion may award an amount of damages based on the evidences.
【Fund】: 国家社会科学基金重大课题(17ZDA138)“创新驱动发展战略下知识产权公共领域问题研究”
【CateGory Index】: D951.6;DD913
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