Practice Areas | Legal Enforcement | Q & A
G. Remedies available from the court 2. How is sum payable by an infringer calculated?
Article 97 of the Patent Act provides that the damages claimed pursuant to this Act may be calculated according to any of the following methods:
1.      if no method of proof can be produced to prove the damages suffered, a patentee may claim damages based on the difference between the profit earned through patent exploitation after infringement and the profit normally expected through exploitation of the same patent;
2.      the profit earned by the infringer as a result of patent infringement; or
3.      the amount calculated on the basis of reasonable royalties that may be collected from exploiting the invention patent being licensed.
Subject to the preceding paragraph, where the infringement is found to be intentionally committed, the court may, upon request and on the basis of the severity of the infringement, award the damages greater than the loss suffered but not exceeding three (3) times of the proven loss.
G. Remedies available from the court 3. Are all infringers injuncted? If not, what factors are taken into account?
No, not all infringers are injuncted. There are 4 factors the court will consider when deciding whether to grant the provisional injunction:
1.      the likelihood that the applicant of the provisional injunction will win;
2.      whether the party against which the provisional injunction is granted will suffer irreparable harm;
3.      balance between the applicant’s damages suffered if the provisional injunction were not granted and the harm suffered by the party against which the provisional injunction is granted; and
whether granting the provisional injunction will negatively affect public interests.
G. Remedies available from the court 4. What orders are made regarding infringing products (delivery up / destruction on oath / infringer has to buy back stock)?
Article 96 of the Patent Act stipulates that when making a demand pursuant to requiring a person who infringes or is likely to infringe the patent right to stop or prevent such infringement, the patentee may request for destruction of the infringing articles or the materials or implements used in the infringing act, or request for other necessary disposal.
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