Study On Punitive Damage Of Patent Infringement

In order to solve the problem of "low compensation" in patent infringement damages and to curb the more serious phenomenon of patent infringement in our country,we formed the Draft Revision of the Patent Law of the People’s Republic of China(the draft for examination).In Article 68 of the infringement damages,punitive damages of willful infringement is added to it,which has a positive effect on increasing patent infringementcoststo curb the phenomenon of the proliferation of patent infringement and solving the problem of "low compensation".China’s patent infringement damages in Patent Law is in the application of the principle of compensation,whose purpose is to compensate the actual loss to theperson,owning patent right,suffered infringement,but in the judicial practice,there is a high rate of using of the statutory compensation,the actual loss of the obligees is difficult to get the situation.In addition to the exclusion of statutory compensation from punitive damages in the article 68 of the Draft,it makes it impossible for statutorycompensation and punitive damages to be applied at the same time,which results in the majority of persons who suffer losses because of patent infringement can not get the compensation,and most of the intentional infringers can not be punished.It is not conducive to solve the "low compensation" problem and to contain the proliferation of patent infringement in China.This paper analyzes and studies the question of whether the statutory compensation can be the base of punitive damages in the light of the present situation of patent infringement compensation in our country and the provisions of Article 68 of the Draft.This paper is divided into three chapters: The first chapter is an overview of punitive damages.First,the basic principles of punitive damages are analyzed and studied,including the concept,development and function and characteristics of punitive damages.Moreover,through the analysis of the patent infringement damages provisionsof other countries and Taiwan in China,I understand their attitude and application of punitive damages,which lays the foundation for the chapters blow.The second chapter is the rational analysis of the introduction of punitive damages in the patent field.First of all,with the analysis of China’s patent infringement damages systemin the first section,China’s patent infringement damage "low compensation" problem and patent infringement serious phenomenon can be seen and the introduction of punitive compensation is imperative.In the following two sections,the necessity and feasibility of introducing punitive damages in the patent field are analyzed in order,which prove that China not only needs to introduce punitive damages to improve the phenomenonof patent infringement damages,but also has the relevant theory support and sufficient experience of applying punitive damages.On the basis of demonstrating the reasonableness of the introduction of punitive damages,legislative proposals for Article 68 of the Draft will be proposed in chapter 3 of this paper.The third chapter is the conclusion chapter,which is divided into three sections.The first section analyzes the current situation of patent infringement damages in China on the basis of a large number of cases of patent infringement,and draws the conclusion that the application rate of statutory compensation is very high.On the basis of this,the second section puts it forward that it is unreasonable to make statutory compensation excluding from punitive damages whichmake it can not become a base of punitive damages.In the section three,I proposes aproposal for Article 68 of the Draft.It is that the provision of the punitive damages for intentional infringement of patent rights should be placed after the statutory compensation independently.