The Rule of Technical Apportionment in the Calculation of Patent Infringement Damages

Technical apportionment is the general rule in the calculation of patent infringement damages.This rule eliminates the profits which are not created by the patent technology and makes the calculation of the damages more scientific and reasonable.In America and Japan,which represent the common law system and the continental law system respectively,the theoretical research and judicial application of technical apportionment have a long history and so numerous theories as well as classical court verdicts have been created,which we can use for reference.In the judicial practice of China,technical apportionment rule has already been applied in some cases,but the operation is always extensive and haphazard.In order to make the calculation of infringement damages more accurate and scientific,we should measure the technology apportionment proportion bythe market value analysis method and assign the burden ofprooftothe infringer.