Q: Hello, lawyer, I have a question to ask you. Excuse me, in the patent infringement dispute, if the actual loss suffered by the right holder due to infringement can be determined, is it necessary to determine the amount of compensation?
A: Juntong Legal Online Consultation answers for you
According to the second paragraph of Article 63 of the Patent Law, a seller or user can only be exempted from the liability for compensation if he/she is "unknown" and has a "legitimate source", but it still constitutes infringement and should bear the responsibility of stopping the infringement and eliminating the influence. That is to say, for bona fide sales or users, the principle of no-fault liability should be applied to stop infringement and eliminate influence, and the principle of fault liability should be applied to compensation. However, the application scope of this mixed principle cannot be extended to the act of manufacturing or importing patented products.
Fault is not a constituent element of patent infringement. When determining the tort liability of the actor, no-fault liability should be applied to stop the tort liability, while the liability for compensation for losses should be applied to fault liability and no-fault liability respectively according to different occasions. Different imputation principles can be applied to the same patent infringement to determine different civil liabilities, which should be said to be more reasonable than the traditional theory.