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Recent Trends in the Compensation System for DamageAn Opportunity to Prevent Benefitting from Infringement?
A claim for damage in tort is stipulated in Article 709 of the Civil Code. However, in the case of patent infringement, it is often difficult for a patentee to prove the damage, so special provisions are established in the Patent Act. The presumptive rule of the amount of damage stipulated in Article 102 of the Patent Act is one such provision, and it stipulates the method of calculating the amount of damage. The method for calculating lost profits under Article 102 (1) was revised due to the revision of the Patent Act last year and came into effect on April 1. Due to the revision of this Act, the overlapping application of Article 102 (1) and (3) is stipulated, and the amount of damage (amount equivalent to royalty) of the former paragraph (3) which is deemed to have been licensed to an infringer can now be added to the lost profit of the former paragraph (1) for the damage that was not recognized in the calculation of the lost profit of the former paragraph (1).