Rademacher, Christoph --- "The theory and practice of patent damages in Japan and the US: explaining the differences that remain" [2019] ELECD 752; in Takenaka, Toshiko (ed), "Research Handbook on Patent Law and Theory" (Edward Elgar Publishing, 2019) 272

Book Title: Research Handbook on Patent Law and Theory

Editor(s): Takenaka, Toshiko

Publisher: Edward Elgar Publishing

Section: Chapter 11

Section Title: The theory and practice of patent damages in Japan and the US: explaining the differences that remain

Author(s): Rademacher, Christoph

Number of pages: 24

Abstract/Description:

This chapter introduces the statutory framework and established court practices related to patent infringement damages in the United States and Japan, and tries to provide an explanation for why damages amounts awarded by US courts have remained significantly higher than in Japan. The discussion shows that the frameworks that govern the calculation of the types of patent damages do not put US patentees in a more favorable position than their Japanese counterparts. Enhanced damages that are available in the US but not in Japan do not seem to play a very significant role in US patent litigation and certainly cannot explain the difference in damages awarded. The differences in patent damages awards can be explained though by pointing to the market size and type of products and defendants that are engaged in litigation in the US and Japan.