中美专利侵权损害赔偿比较研究
发布时间：2018-12-21 11:32
【摘要】：随着二十一世纪科技高度发达和信息产业的迅猛发展，世界各国数以百万计的专利技术使取得突破性专利技术的可能性越来越小。专利与专利之间的本质性差异越来越难以表现，更多的是一种改进性的差异（在专利贡献度上有不同认识）。这种情况所带来的困难是法官如何能精确地计算专利侵权赔偿数额。 专利侵权赔偿数额的计算非常复杂，由于专利案件有高度的专业性对仅有法学功底的审判人员来说是严重的障碍，所以法官往往需要专业技术人员的支持尤其是财务人员的帮助才能对侵权赔偿数额进行认定，对于损害赔偿额的确定又是一个易说不易做的事，在实践中，对损害赔偿额的认定有很大的操作困难，这就需要多种方式来计算侵权的实际数额。即使如此往往最后也计算不出确切的数额。因此计算方法的构建和适用对于赔偿数额的合理确定具有重要意义。在专利实践中，我国法官往往为节省时间滥用法定赔偿，并且使用的计算方法的不规范也已经严重影响了赔偿数额的合理确定，严重削弱了专利制度的激励和平衡功能。 本文从中美专利侵权赔偿计算方法的异同为中心来分析，指出中美在所失利润主要从从销售下降导致利润下降、）价格腐蚀、边际利润三个具体方法的异同、在许可费主要从三大方式例如惯例、虚拟自愿协商、分析法三个角度来计算。美国曾经有过侵权获利但后来逐渐废止了，而我国却结合司法实践很好的保留了下来。法定赔偿是我国所特有的，美国没有法定赔偿的概念。本文第四章主要从美国近些年来兴起的专利技术与市场综合分析法的角度切入，较深入的探讨了技术分摊与全部市场价值。本文第五章结合分析美国专利侵权赔偿的计算方法来来对我国立法方面提出的一些建议，主要涉及引入惩罚性赔偿、完善非法获利、扩大许可费、对法定赔偿进行精细化计算等方面。 本文同时结合第四次专利法的修改和苹果诉三星这桩世纪大案来综合运用比较研究、案例分析、历史分析等方法对专利侵权赔偿计算方法进行探讨和剖析，以期为解决实务中这一难题提供可行性建议。
[Abstract]:With the high development of science and technology and the rapid development of information industry in the 21 century, millions of patent technologies in the world make the possibility of obtaining breakthrough patent technology less and less. The essential difference between patent and patent is more and more difficult to express, more is a kind of improvement difference (in patent contribution degree has different understanding). The difficulty with this situation is how the judge can accurately calculate the amount of patent infringement compensation. The calculation of the amount of compensation for patent infringement is very complicated. Because of the highly professional nature of the patent case, it is a serious obstacle to the judges who have only legal knowledge. Therefore, judges often need the support of professional and technical personnel, especially the help of financial personnel, to determine the amount of tort compensation. It is easy to say that the determination of damages is not easy to do. In practice, It is very difficult to determine the damages, which requires a variety of ways to calculate the actual amount of infringement. Even so, it is often impossible to calculate the exact amount in the end. Therefore, the construction and application of the calculation method is of great significance to the reasonable determination of the amount of compensation. In patent practice, our judges often abuse the legal compensation in order to save time, and the nonstandard calculation method used has seriously affected the reasonable determination of the amount of compensation, seriously weakened the incentive and balance function of the patent system. Based on the analysis of the similarities and differences in the calculation methods of patent infringement compensation between China and the United States, this paper points out that the loss of profits in China and the United States is mainly caused by the decline of profits from sales,) the price corrosion, and the difference and similarities of the three specific methods of marginal profit. Licensing fees are calculated from three perspectives, such as convention, virtual voluntary negotiation, and analysis. The United States used to profit from infringement, but it was abolished gradually, but our country kept it in combination with judicial practice. Legal compensation is unique to our country, the United States does not have the concept of legal compensation. The fourth chapter is mainly from the point of view of patent technology and market comprehensive analysis developed in the United States in recent years, and probes into the technology allocation and the total market value in depth. The fifth chapter of this paper analyzes the calculation methods of patent infringement damages in the United States to put forward some suggestions on our legislation, mainly involving the introduction of punitive damages, the improvement of illegal profits, the expansion of licensing fees. Detailed calculation of legal compensation and so on. At the same time, combined with the revision of the fourth patent law and the case of Apple v. Samsung, this paper makes a comprehensive use of comparative research, case analysis, historical analysis and other methods to discuss and analyze the calculation methods of compensation for patent infringement. In order to solve this problem in practice to provide feasible advice.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D971.2;D923.4
本文编号：2388855
[Abstract]:With the high development of science and technology and the rapid development of information industry in the 21 century, millions of patent technologies in the world make the possibility of obtaining breakthrough patent technology less and less. The essential difference between patent and patent is more and more difficult to express, more is a kind of improvement difference (in patent contribution degree has different understanding). The difficulty with this situation is how the judge can accurately calculate the amount of patent infringement compensation. The calculation of the amount of compensation for patent infringement is very complicated. Because of the highly professional nature of the patent case, it is a serious obstacle to the judges who have only legal knowledge. Therefore, judges often need the support of professional and technical personnel, especially the help of financial personnel, to determine the amount of tort compensation. It is easy to say that the determination of damages is not easy to do. In practice, It is very difficult to determine the damages, which requires a variety of ways to calculate the actual amount of infringement. Even so, it is often impossible to calculate the exact amount in the end. Therefore, the construction and application of the calculation method is of great significance to the reasonable determination of the amount of compensation. In patent practice, our judges often abuse the legal compensation in order to save time, and the nonstandard calculation method used has seriously affected the reasonable determination of the amount of compensation, seriously weakened the incentive and balance function of the patent system. Based on the analysis of the similarities and differences in the calculation methods of patent infringement compensation between China and the United States, this paper points out that the loss of profits in China and the United States is mainly caused by the decline of profits from sales,) the price corrosion, and the difference and similarities of the three specific methods of marginal profit. Licensing fees are calculated from three perspectives, such as convention, virtual voluntary negotiation, and analysis. The United States used to profit from infringement, but it was abolished gradually, but our country kept it in combination with judicial practice. Legal compensation is unique to our country, the United States does not have the concept of legal compensation. The fourth chapter is mainly from the point of view of patent technology and market comprehensive analysis developed in the United States in recent years, and probes into the technology allocation and the total market value in depth. The fifth chapter of this paper analyzes the calculation methods of patent infringement damages in the United States to put forward some suggestions on our legislation, mainly involving the introduction of punitive damages, the improvement of illegal profits, the expansion of licensing fees. Detailed calculation of legal compensation and so on. At the same time, combined with the revision of the fourth patent law and the case of Apple v. Samsung, this paper makes a comprehensive use of comparative research, case analysis, historical analysis and other methods to discuss and analyze the calculation methods of compensation for patent infringement. In order to solve this problem in practice to provide feasible advice.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D971.2;D923.4
【参考文献】
相关期刊论文 前5条
1 王岩云;;知识产权侵权损害赔偿原则探析[J];河北师范大学学报(哲学社会科学版);2009年06期
2 朱启莉;麻锐;;我国知识产权法定赔偿计量标准的确立[J];哈尔滨学院学报;2010年12期
3 赵烽;;浅议我国专利侵权赔偿标准的完善[J];新学术;2008年03期
4 郑芊;;浅析知识产权侵权损害赔偿问题[J];知识经济;2009年07期
5 黄尔;;边际利润在确定知识产权侵权损害赔偿额中的应用——从经济学和知识产权法学的角度分析[J];知识经济;2010年19期
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