Japan
Answer ... Injunctions and damages.
Japan
Answer ... There are three ways to compute damages in patent infringement litigation under the Patent Law:
- based on the number of infringing products and the patent holder’s profit;
- based on the infringer’s profit; and
- based on the licence royalty.
The amount of damages may be determined by multiplying the number of infringing products sold by the profit per unit that the plaintiff would have earned without the infringing activities, within a limit not exceeding the potential production capacity of the patent holder (Article 102(1) of the Patent Law). However, if circumstances prevented the patent holder from selling part or all of the infringing products, a sum equivalent to the amount subject to that circumstance will be deducted. The burden of proving the existence of the circumstance rests with the infringer.
The amount of damages is presumed to be equal to the profits gained by the infringer through the infringement (Article 102(2) of the Patent Law).
In February 2013, the Grand Panel of the IP High Court held that:
- Article 102(2) of the Patent Law applies as long as the patent holder could have gained profit without the patent infringement by the infringer; and
- it is not necessary for the patent holder to exercise the invention.
A patent holder may demand compensation for damages in the amount it would have been entitled to receive under a licence for the working of the patented invention (Article 102(3) of the Patent Law).