Punitive Damages For Patent Infringement

The patent punitive damages imposed by the court require the infringer to bear more than the actual loss of the right holder.This rule can punish patent infringers and deter potential infringers in order to reduce the incidence of patent infringement.However,the debate on whether to introduce patent punitive damages originating from the Anglo-American law and how to apply in China has never stopped.Most scholars who support the introduction of the rule take punitive damages as a tool to increase the patent infringement compensation amount to compensate the loss of the patentee.They also require the application of the punitive damages to comply with strict standards,such as not only requiring the right holder to prove subjective"intent"or even"malicious"of the infringer,but also requiring serious objective consequences.In this regard,some scholars hold different opinions.With the continuous development of China's scientific and technological innovation,the quantity and quality of patents in China are keeping rising.However,patent infringement occurs frequently and the amount of compensation for infringement is low,which makes it difficult for the legitimate rights and interests of the patentee to be guaranteed.In recent years,the call for raising the level of patent protection in China has been rising,and the establishment of a patent punitive damages is also advancing.On December 5,2018,the State Council executive meeting reviewed and approved the Revised Draft Patent Law(Draftfor Review),Article 68 of which clearly stipulates punitive damages,but the draft does not give detailed guidance on the application of the punitive damages.In fact,due to the lack of calculation guidance for the compensation amount and the difficulty for patentees to prove the relevant evidence,the statutory compensation is widely used in the judicial practice.Therefore,if the patent punitive damages are introduced,the lack of scientific understanding of the punitive damages and detailed guidance on the calculation of punitive damages will make it difficult to apply the rule and ultimately fail to achieve the original intention of the introduction of the rule.Based on the analysis and summary of the characteristics and disputes of the patent punitive damages,the empirical study on the patent infringement damages in recent years in China,the legislative and judicial practice experience of the patent punitive damages in the United States and Taiwan and the application experience of the trademark punitive damages in China,as well as the current patent infringement legislation and judicial practice in China,this paper believes that the introduction of patent punitive damages can better protect the patentee and encourage innovation;however,punitive damages for patent infringement should only be applied when the infringer has subjective fault,which should include not only "intent",but also "major negligence"to expand the application scope of punitive damages;the main purpose of patent punitive damages is not compensate the patentees in individual cases,but to punish infringers with subjective faults and deter potential infringers,so as to reduce the occurrence of patent infringement;and the determination of punitive multiplier should be based only on the degree of subjective fault of the infringer,without repeated evaluation of other factors.The first part of this article elaborates the meaning,function and nature of the punitive damages and its application in different countries and regions including China.The second part conducts an empirical study on the judicial practice of patent infringement in China and summarizes the views of scholars on whether to introduce the patent punitive damages in China.The third part introduces the legislative and judicial practice of the patent punitive damages system in the United States and Taiwan,and the socio-economic factors and interests behind it.At the same time,it collects the problems and experiences in the application of the trademark punitive damages in China.The fourth part introduces the legislative trend of patent infringement damage compensation and the calculation and characteristics of patent infringement damage compensation in China at present.It puts forward the factors that should be considered when calculating the infringement damages and discusses the application threshold and the factors influencing the determination of punitive damages multiplier.