If the infringer only takes the upgrade price as the evidence to calculate the compensation of the software involved in the case, it may not be supported by the judges （the judges of both the first instance and the second instance did not support such defense）。

　　If the infringer takes the upgrade price that he/it has bought as the evidence to request the court to balance out or deduct such amount when the court determines the compensation amount, in our opinion, the following further analysis should be made to decide whether it would be supported by the judges:

　　Condition 2: If the infringer uses R2 without permission after he/it buys R1, and he/it buys the upgrade service and gets the authorization of R3 based on R2 after the litigation procedure begins;

　　In our opinion, for that the infringer does not have legal authorization of R2, he/it is not entitled to upgrade R2 to R3. Therefore, such buying behavior does not have substantial influence on the determination of compensation amount.

　　Condition 3: If the infringer uses R2 without permission after he/it buys R1, and he/it buys the upgrade service and gets the authorization of R3 based on R1 after the litigation procedure begins; if the price of the upgrade from R1 to R2 is roughly equivalent to the price of the upgrade from R1 to R3, the infringer takes the buying of the upgrade software as the evidence to request the court to balance out the amount or to directly exempt the compensation liability when the court determines the compensation amount;

　　In our opinion, the judges may consider to accept the above-mentioned defenses of the infringer. According to relevant laws and judicial interpretations[3], the principle of the IPR compensation system of our country is to compensate the actual losses. If the subsequent remedies of the infringer recovers the actual losses of the right holder, it would lack the bases upon law to request the infringer to continue to bear the compensation liability （the factors should be discussed separately and are not included in the consideration of this article, such as the reasonable expenses the right holder spends to prevent the infringement, the illegal gains of the infringer which are apparently higher than the market price of the software, the civil sanction and etc.）。