Newsletter
BURDEN OF PROOF WHEN SEEKING DAMAGES FOR PAT-ENT INFRINGEMENT
Article 89 Paragraph 1 Item 1 of the Patent Law provides that when a patentee seeks damages but is unable to provide evidence of the extent of the loss incurred, he may seek damages in the amount of the profit he would normally have derived from exploiting the patent, less the profit he actually derived from exploiting the same patent after the infringement began. But the law makes no provision as to whether the patentee bears the burden of proof in showing a causal relationship with the occurrence of the loss. In a 2000 civil appeals judgment, the Supreme Court stated clearly that a patentee seeking damages for patent infringement bears the burden of proving the occurrence of a loss, the grounds for the de-fendant's liability, and a causal relationship be-tween the two. Article 89 Paragraph 1 of the Patent Law merely provides a method for cal-culating the amount of loss incurred, but is not an exception to the principles governing the award of damages.