Increasing Compensation to Patentees by Allocating Burden of Production in a Different Way

Following the New Judicial Interpretation on Patent Infringement by the Supreme Court of last year, we see change in court's way of allocating burden of production. Please refer to the following for detailed information.

Article 65 of the Chinese Patent Law is about compensation to right holders for patent right infringement. According to its provision, damages are normally calculated based on: A. losses suffered by the patentee; B. profit made by the infringer; C. reasonable multiple of royalties; and D. statutory damages. Statistics show that statutory damages were applied in about 97% patent infringement cases, which is mainly due to difficulty in producing evidence for proving the patentee's losses or the infringer's profits. As a result, patentees in China had long faced with the problems of undue burden of producing evidence and insufficient damages.