The Study Of Punitive Damage In Patent Infringement

Punitive damages is originated from common law. In the countries of common law,Punitive damages refers to extra compensation to the plaintiff awarded by the court inaddition to the actual damage, because of act of the defendant which is malicious, fraudulentor rash, and lead to the damage of the plaintiff. It is used for punishing the defendant anddeterring the similar action. Compared with compensatory damages, punitive damages plays amore obvious function of punishing and preventing. The United states is a representative inthe field of application of punitive damages in patent infringement. It says in the article284thof the patent law of The United States,“Upon finding for the claimant the court shall awardthe claimant damages adequate to compensate for the infringement but in no event less than areasonable royalty for the use made of the invention by the infringer, together with interestand costs as fixed by the court. When the damages are not found by a jury, the court shallassess them. In either event the court may increase the damages up to three times the amountfound or assessed.” Given the characteristics of patent infringement, Current situation ofpatent infringement and the needs of building an innovation-oriented country, some scholarssay China should introduce the punitive damages in patent infringement. Based on researchmade by the scholars, this article aims to explore whether China should introduce the punitivedamages in the field of patent infringement.The first part expounds the meaning of punitive damages. Punitive damages is the wayto bear civil liability, generally imposed to the infringer who has a subjective malignant andcannot be forgiven by people. It is used for punishing the defendant and deterring the similaraction. Secondly, this part discusses the relationship between punitive damages andcompensatory damages. The application of compensatory damages is the premise of theapplication of punitive damages, both the nature of liability and the application of theconditions are different and punitive damages is affected by compensatory damages. Finally,this part expounds the functions of punitive damages. Punitive damages adapt to thedevelopment of the modern tort law, acting as the regulatory role of modern society.The second part introduces the application of punitive damages in the United States ofAmerica, some countries of civil law system and China, and the tort type punitive damagesapplied in. The application of punitive damages has shown a trend of expansion, both in areasand types. Then this part focuses on the field of patent infringement, introducing theapplication of patent infringement of punitive damages in American, Japan and Taiwan of our country.The third part analyzes the rationality of punitive damages in patent infringement. TheUnited States of America has widen the scope of punitive damages in patent infringementirrationally. Punitive damages should be applied in some cases. From the situation of ourcountry, the application of punitive damages in these cases don’t accord with the developmentof China’s patent industry. Then this part discusses the coordination of punitive damagesintroduced in the patent law and the existing legal system, including the rationality of punitivedamages to the patentee, whether the introducing will lead to more cases，and whether theapplication of punitive damages will cause the unfairness in evidence.Based on the above three parts, the fourth part explores scopes of the system of punitivedamages and versatile factors which influence on punitive damages, for the reference of thepatent infringement of punitive damages in the United States and China’s Taiwan region andremove the unreasonable satiations.