| Except for the exceptional circumstances such as the extinction of intellectual property and adverse effects on trademarks, the value basis of liability for infringement on intellectual property is not the price of intellectual property in the transfer market, but the price of intellectual property in the licensing market, namely the license fee. Infringement on the intellectual property of others does not necessarily affect the use by the infringed party and its licensees, or result in loss of acquirable benefits. The infringed party may still request the infringer to pay royalties for the illegal use based on the law of unjust enrichment even when he has not suffered the loss of acquirable benefits calculated according to the license fee. Intellectual property laws stipulate the licensing fee compensation not as compensation for damage, but as compensation for return of benefit. Licensing fee compensation belongs to tort liability in terms of constituent elements, but is equivalent to restitution of unjust enrichment in terms of legal consequences. The license fee in this sense is not a presumed loss of gains, but the value of the use itself. As long as the infringed intellectual property can be priced through the market, the use of the intellectual property can also be priced through the market, and the infringed party can claim compensation for license fee. In the legal framework of alternative compensation standards, license fee compensation can replace restitution of unjust enrichment to provide the infringed party with the minimum standard of relief. The main way for infringement compensation to reflect the value of intellectual property is to determine not only the amount of compensation based on the license fee but also the minimum relief standard based on the license fee. |
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