Research Handbook on Patent Law and Theory
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Research Handbook on Patent Law and Theory

Second Edition

Edited by Toshiko Takenaka

This significantly updated second edition of the Research Handbook on Patent Law provides comprehensive coverage of new research for patent protection in three major jurisdictions: the United States, Europe and Japan.
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Chapter 11: The theory and practice of patent damages in Japan and the US: explaining the differences that remain

Christoph Rademacher

Abstract

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.

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