Determining Damages for Patent Infringement in China

This article examines the determination of damages for patent infringement in China. Based on empirical data, Chinese judicial precedence and judicial interpretations, this article depicts how the size of damages for patent infringement is determined through three methods (the patentee’s actual loss, the infringer’s profits and reasonable royalties) and statutory damages in China. In particular, it makes a comparison between Chinese and German approaches. The comparison finds that Chinese courts have insisted on unrealistic standards of proof on the part of patentees for entitlement to the three methods. Therefore, this has relegated the patentees to statutory damages that are not designed to compensate their losses in most patent infringement trials. This article suggests easing the burdens of proof for the patentees under the three methods while strictly observing the restriction on recourse to statutory damages. © 2016, Max Planck Institute for Innovation and Competition, Munich.