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Q139. Damages

Q139. Damages
 How is the award of damages calculated in Japan?

A139. The Patent Law has provision for presumption of amount of damage (Art. 102). According to the Patent Law Art. 102, a patentee can select one of the following three methods to calculate damages caused by infringement.
1) A patentee can demand the amount of profit per unit of patented products that would have been sold by the patentee but for the infringement, multiplied by the quantity of patented products sold by the infringer. In this case, the award of damages shall not exceed the patentee’s capability to produce or sell such patented products.
2) When an infringer has earned profits from the act of infringement, a patentee can demand the amount of profits earned by the infringer as damages caused by the infringement.
3) A patentee can demand the amount of a royalty the patentee would have been entitled to receive for the patent.