Guangdong changhao lawyer office
abstract
The evaluation of intellectual property damage compensation is of great significance, but it has always been the focus and difficulty that puzzles judicial practice. At present, there are some problems in the evaluation of intellectual property damage compensation in terms of substantive standards, procedures and the connection between evaluation procedures and trial procedures. In this regard, we should strengthen the research on the basic theory of intellectual property evaluation, and improve the corresponding trial procedure and damage compensation evaluation system on the basis of clarifying the functional difference between trial procedure and evaluation procedure.
key word
intellectual property
compensation for damages
estimate
Compensation for intellectual property damage is not only a solution to the problem of infringement damage, but also an important means to effectively protect the obligee and encourage the development and creation of intellectual achievements. However, the issue of damages in intellectual property litigation has always been the focus and difficulty that puzzles judicial organs. How to improve the evaluation of intellectual property damage compensation and give full play to the role of intellectual property damage compensation means has become a very urgent problem before us.
One,
Main problems in the evaluation of intellectual property damage compensation
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one
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Substantive problems in the evaluation of intellectual property damage compensation
1
There are many problems in discretionary compensation.
In many cases, either because the plaintiff can't submit relevant evidence, or because the evidence submitted by the plaintiff can't meet the evidence requirements, and can't fully prove the actual losses suffered by the plaintiff or the benefits gained by the defendant due to infringement, so the compensation amount is finally determined by the court in most cases.
Discretion will be influenced by many complicated factors such as the quality of judges and jurors, the degree of economic development in different regions and so on. Correct use of discretion can effectively stop infringement and protect the legitimate rights and interests of the parties.
On the contrary, it will lead to the abuse of discretion, harm the interests of both parties, and easily lead to the problem of different law enforcement standards. Although the statutory compensation reduces the pressure of judicial organs in determining the amount of tort compensation to a certain extent, due to the considerable gap between the discretionary amount and the actual loss amount, the statutory compensation in the case will be different from the basic principles of damages in civil law theory.
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Principle of equivalent profit and loss
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refute
Inconsistent referee standards cause controversy.
The law and judicial interpretation have stipulated different calculation methods for the evaluation of damages for infringement of intellectual property rights, but the calculation standards are relatively principled and lack operability. There is no unified standard for the industry of evaluation institutions, and intellectual property evaluation is basically in a state of no rules to follow.
2007
1996 The Decision on the Administration of Judicial Appraisal issued by the National People's Congress Standing Committee (NPCSC) stipulates that the appraisal institutions and appraisers related to intellectual property judicial appraisal shall be uniformly registered and managed, and shall be included in the scope of registration administration of judicial administrative departments. However, there are no special regulations on the registration management of authentication institutions and authenticators. The specific operating procedures of intellectual property damage compensation evaluation are not standardized.
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Most of them adopt a set of rules and methods within the enterprise, which leads to great differences in the evaluation results of the same evaluated object by the evaluation institutions.
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And appraisal institutions are often mixed. This undoubtedly greatly reduces the credibility of the appraisal conclusion.
Patent evaluation involves many risk factors. For a long time, some judgments failed to analyze in detail the quantitative relationship between the factors considered in the case and the amount of compensation, as well as the evidence identification of related factors, and even failed to publish the factors considered in discretionary compensation. In addition, different judges have different experiences, levels and subjective feelings, which objectively leads to great differences in similar compensation amounts in cases, and the compensation amount for intellectual property infringement is also criticized, which reduces the authority of judicial decisions.
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two
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Procedural issues in the evaluation of intellectual property damage compensation
It is serious to start identification at will.
At present, the evaluation of intellectual property damage is started at will, and some judges start the appraisal procedure as soon as they encounter technical problems. The disadvantage of starting the evaluation procedure at will is that
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On the one hand, technical appraisal will inevitably lead to the increase of litigation costs and the extension of litigation time, which is contrary to the requirements of judicial efficiency.
On the other hand, the final solution of any problem in the trial still needs the judge's cognition, and technical problems are no exception.
Problems existing in the process of entrusted evaluation
It has been recognized that entrusted evaluation should be a technical issue, not a legal issue. However, there is no consensus on what kind of problems are professional and technical and what kind of problems are legal, which leads to great differences in the matters entrusted for appraisal. Sometimes even rashly entrust all matters to the appraisal institution for appraisal, which leads to the transfer of the judicial power of the court.
The appraisal materials must be the evidence recognized by the court, not all the evidence submitted by the parties. Some judges submit all the materials submitted by the parties to the appraisal institution without screening before the evidence is confirmed, without taking into account the various materials provided by the parties to support their claims, and cannot be used as evidence for appraisal until the court takes it as the basis for finalization.
The appraisal agency's description of the appraisal conclusion and appraisal object is too simple, and there is no relevant description of the substantive characteristics of the items involved, such as details such as name, brand, use, quality, material and state, and the description of the appraisal process is generally only clear.
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After accepting the entrustment, some samples were inspected in kind.
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、
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According to the substitution principle of market law
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As for the detailed process of appraisal, such as how many samples were tested, what materials were provided by the entrusting party and what materials were obtained, there was no detailed description, which made the users of appraisal conclusions.
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Judges and parties cannot examine and cross-examine the objectivity, authenticity and scientificity of the expert conclusion.
The evaluation fee standard of intellectual property damage compensation is unreasonable.
At present, the internal competition in the whole evaluation industry is not standardized, and vicious competition occurs from time to time. More enterprises choose evaluation agencies based on whether they can issue evaluation reports according to their own intentions. It is impossible to form a level playing field in the industry on the basis of protecting the interests of both intellectual property owners and investors. On the premise of implementing a unified charging standard, the charging standard for intellectual property evaluation should be different from that for general evaluation. Because the evaluation of intangible assets in litigation cases is very complicated from law to technology, and the subject matter is mostly small and responsible, the evaluation lasts for a long time and the cost is high. If the charging standard is not adjusted, it will affect the evaluation quality of intangible assets in litigation cases.
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three
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Problems existing in the connection between evaluation procedure and trial procedure
Difficulties in proof
In practice, it is difficult to calculate the actual loss caused by the infringement of the right holder. Because the loss suffered by the obligee due to infringement must be proved by the obligee, and the personal loss must have a causal relationship with the defendant's infringement, it is sometimes very difficult to prove the causal relationship. In addition, under normal circumstances, the sales volume and market share of intellectual property products are not easy to prove.
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Because sales volume and market share are not only related to intellectual property elements, but also affected by factors such as sales strategy, normal market competition and related services.
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It is usually difficult for debtors to provide conclusive evidence of their losses.
It is also difficult for the defendant to prove that he has profited illegally from the infringement. In many cases, all the profits obtained by the defendant in the process of infringement are regarded as damages, but there is actually a causal relationship problem, that is, the defendant's income is due to the use of the plaintiff's intellectual property rights, and this profit should have been obtained by the plaintiff. The infringer's illegal income is mainly reflected in the financial account books, production records, sales contracts and business information published by the infringer.
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Such as advertising
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Wait a minute. As we all know, the current implementation of China's financial system is not optimistic. In some cases, the defendant doesn't even have an accounting book, so he can't provide authentic financial books at all. Some defendants are subjectively unwilling to pay compensation and refuse to submit relevant evidence, especially when the illegal income exceeds the statutory maximum discretionary compensation. Because most of the evidence about the infringer's illegal income is in the hands of the infringer and the obligee can't get it, it is usually difficult to prove it. The infringer claims that he has not made a profit or refuses to provide relevant evidence, which makes it difficult to prove.
The appraiser is unwilling to testify in court.
The related rights and obligations of evaluation institutions to participate in court proceedings are not refined, which directly leads to a very low proportion of appraisers to testify in court. The main reasons why the comprehensive appraiser is unwilling to testify in court are as follows.
:( 1)
The procedural law is tolerant of the appraiser's failure to testify in court, and there is no mandatory system for the appraiser's failure to testify in court. According to the judicial interpretation in the Supreme People's Court, the appraiser fails to appear in court after being summoned by the court.
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If it does not affect the trial, the court may hold a hearing.
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. If the appraiser does not appear in court, he may read the appraisal conclusion in court, and with the permission of the people's court, the appraiser may not appear in court to testify. What the hell is going on?
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Does not affect the trial
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Individual circumstances allowed by the court
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There is no specific provision, which opens the door for appraisers not to testify in court.
(2)
The relevant supporting measures for appraisers to testify in court are incomplete. China has not established a series of systems for appraisers to testify in court, such as the right of economic compensation for appraisers to testify in court, so the enthusiasm of appraisers to testify in court is not enough.
At the same time, because there is no provision for the judicial protection right of the appraiser and his relatives, there are many concerns for the appraiser to testify in court.
Some judges assessed the loss.
Conclusion Improper acceptance of trust In judicial practice, some judges exclude the parties from entrusting the appraisal by themselves and are unwilling to cross-examine the legal appraisal conclusion designated according to their functions and powers, thus limiting the questioning of the legal appraisal conclusion, weakening or even giving up the evaluation of the legal appraisal conclusion and weakening the function of the appraisal conclusion as a method of evidence. The root of the disorder of professional expertise in intellectual property litigation lies in the unclear understanding of the nature of expertise in the civil evidence system in theory.
Appraisal mostly involves the knowledge characteristics of professional technology, which leads some judges to habitually regard the appraisal conclusion as a judgment superior to other evidence out of unwarranted trust in legal appraisal institutions and their administrative level. In many cases, the appraisal conclusion is taken as the basis of judgment without substantive examination, which actually gives the right to identify special facts to the appraisal institution.
There are also some appraisal institutions that can't distinguish responsibilities, and even make judicial determinations beyond their functions and powers in the appraisal conclusions. As a result, improper expert opinions have affected the judge's free evaluation of evidence, and even the transfer of judicial power has occurred. When hearing the case of Guangzhou Blue Moon Company v. Procter & Gamble Company for unfair competition, Guangdong Provincial High Court made appropriate discretion on the duration of infringement. In this case, the defendant's infringing advertisement time is
1999
year
nine
Moon to sun
2000
year
four
In September, the evaluation agency believed that the duration of infringement should be determined as
2003
year
12
Month. The court's decision defines the deadline for infringement as
2002
year
six
Month, that is, the time when the final judgment of the court is heard in public, that is, before the end of the trial debate, the judgment calculates the amount of compensation accordingly.
Expert consultation violates the requirements of due process.
In intellectual property litigation, there are cases where judges consult experts. This kind of consultation is often conducted out of court, which cannot guarantee the objectivity and comprehensiveness of expert opinions, and also deprives the parties of their right to hearing and defense. This kind of expert consultation violates the due process requirements of litigation.