The Research of Japanese Patent Law Article 102(3)

 

Title
The Research of Japanese Patent Law Article 102(3)
Author
Ming-Yung Wang
Keywords
Patentee, Japanese Patent Law, Patent Infringement, Damages, Loyalty
Abstract
A patentee or an exclusive licensee may claim against an infringer compensation
for damage sustained as a result of the intentional or negligent infringement of
the patent right or exclusive license, by regarding the amount the patentee or exclusive
licensee would have been entitled to receive for the working of the patented
invention as the amount of damage sustained, by applying Japanese Patent Law
Article 102(3).
This report is to discuss the problems of Japanese Patent Law Article 102(3).
Japanese courts have granted damages in the form of a reasonable royalty in most
of all cases. The royalty is defined as the amount that a patentee ordinarily receives
as compensation for allowing exploitation of the patented invention. This paper
concludes that the amount of money commensurate to the patentee’s loyalty is not
always awarded equally to the amount of money objectively commensurate to the
patentee’s loyalty, on the basis of the amount of average loyalty in the same profession,
the amount of loyalty intended for national patents, and so on. The amount of
money commensurate to the patentee’s loyalty may be awarded on the basis of the
value of the patented invention and various circumstances surrounding parties concerned. These various circumstances include business relationship between the parties
concerned, the amount of profit that the infringer actually gained by infringement,
for example.
Abstract Article

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