On The Civil Liability For Patent Infringement

Patent system is aiming to prompt technological advancement and innovation by granting a limited period of exclusive right as encouragement to innovators. To realize this purpose, it is necessary for patent legislation to establish the civil liability system for patent infringements in order to guarantee the exercise of such exclusive rights. As one typical intellectual property right, patent also has the nature of civil right. Thus tort theories with respect to civil liability for infringements under civil law shall be undoubtedly applied to patent case. But the truth is not like this because patent right has such particular qualities as other type of IP does that the traditional tort law fails to regulate it effectively. Those qualities include intangibility of intellectual property, combination of property right and personal right, and restriction by public domain. As a result, any research or study on civil liability of patent infringement shall, considering those qualities that decide in some degree special regulation concerning patent infringement liability, seek legislative resource and theoretical basis from civil law, instead of being limited within the traditional legal framework of tort law. This paper on the civil liabilities of patent infringement, accordingly, starting from those qualities of intellectual property to analysis of foreign IP laws and TRIPs provisions, focuses on four types of civil liabilities that contribute to the particular system of patent infringement liabilities, including stop of infringement, compensation of damages, recovery of profits, and destroying the infringing products on the solid theoretical basis of right to claim, compensation laws, and unjust enrichment laws.In addition to introduction part and conclusion part, this paper has two main parts, the General and the Detail, comprised of Chapter I, Chapter II, Chapter III, Chapter IV, and Chapter V.Chapter I is the General. This part states the qualities of intellectual property that may impose decisive influences on patent infringement liabilities, including intangibility of intellectual property, combination of property right and personal right, and restriction by public domain, and then portraits the definition of patent infringement and its civil liability. It is contended that the requirements for patent infringement liability shall be considered respectively according to different type of liability.Chapter II is the Detail One. In this part, the primary concern is the liability of stop of infringement, from the theoretical basis of right to claim for absolute right to the requirements for assuming such liability. Thereafter, a comparative study on stop of infringement liability and injunction system in common laws is conducted to indicate that such liability can usually be applied at the same time with other remedies, which contradicts with injunction.Chapter III is Detail Two, referring to the liability of compensation of damages. Compensation of damages is a typical liability for any infringement especially under civil law, which roots in tort law and compensation law. On the basis of these theoretical analysis, it then discusses the requirements for compensation of damages and how to determine the amount of damages in specific patent infringement.Chapter IV is Detail Three. This part focuses on the liability of recovery of profits, also starting from the exploration of its supporting theory, unjust enrichment laws. Through an analysis of relevant provisions in TRIPs and foreign IP laws, it can be deduced that recovery of profits shall be set up in patent infringement liability system as a necessary remedy for patent infringement.Chapter V is Detail Four. In this part the main topic is liability of destroying the infringing products, which is not provided by the patent law of China. Such liability is also based on the right to claim for patent right but a different approach to remedy patent infringement. As the quality of such liability is still on debate, it is argued in this part that this liability shall be one of civil liabilities for patent infringement because TRIPs agreement and some foreign patent laws have proved the necessity and feasibility of the application of such liability.To sum up, China's patent law shall be improved in respect of provisions on civil liability for patent infringement as it is very important to establish a sound remedy system to ensure the execution of patent right. This matters much to make the whole patent system function well for the whole society's well being.