Determination Of "willful" For The Punitive Damages Of Patent Infringement In China

As the country increasingly encourages entrepreneurship and innovation,China's patent applications are already at the top of the world.However,the current status of patent protection is not optimistic.Infringement cases are frequently happened and through the lawsuit,patentees receive less compensation.There are many reasons to explain this phenomenon.First of all,the compensation for patent infringement adopts the “filling principle”,that is,the infringer needs to compensate the patentees for actual losses incurred due to his infringement.However,since the object of the patent right is non-material,the infringement is more likely to occur and more easily scaled.The patentees are also more difficult to prove his loss,because the market is broad and has no borders.So it is difficult to prove the relationship between loss and infringement.In huge amount of cases,owing to plaintiff's insufficient evidence,statutory compensation is applied by the court to calculate patentees' lost.In order to resolve current situation,on the occasion of the fourth revision of the Patent Law,legislators introduced punitive damages,which was stipulated in the “Revised Draft of the Patent Law of the People's Republic of China(Draft for Ratification)”.In accordance with the rule: the court can sentence the infringers to pay punitive damages,if the infringers had "Willful" infringement.Patent infringement punitive damages system is characterized by "willful" infringement.The core issue is how to identify the existence of "willful" in subjectivemental state.Therefore,how to determine the criteria for " willful " determination?what are the key factors when determining "willful" ? What kind of duty of care infringers had done cannot be determined "willful" ? All the questions above are important when applying the punitive damages in patent infringement.Article 14 of the "Criminal Law" of China defines the concept of "willful".In the field of civil law,articles 6 and 7 of the "Tort Liability Act"(2010 version)describe the subjective mental state of the infringer with "fault"."Fault" contains "willful" and“negligent”.There hasn't any other rules about the meaning of "willful" in this law.Although the "Tort Liability Act" stipulates punitive damages in article 47,the rule only applies to the area of "product liability" and has nothing to do with patent infringement.This rule is aimed at the production area and product selling area.If the producer or seller knows that the product is subjectively flawed,but continue to produce or sell,then he has to be responsible for punitive liability when there exists victim's death or when serious health damage has a direct causal relationship with the product and the infringed person request the court to apply punitive liability.In view of the limited research on how to determine "willful" infringement in the patent field,this article intends to study the determination of "willful" patent infringement from other countries in the world.Especially focusing on the theory and judicial practice of the United States.The United States as a typical case law country,it has been established the criteria of "willful" determination and the standards are not static,which changes with the national patent policy and the effectiveness of the law.Therefore,this article based on the research and judicial practice in other countries,combined with the interpretation of "willful" in other laws in China.With these materials,I try to analyze the criteria of "willful" determination when using the punitive damages in judicial practice in China.The thesis consists three chapters.The first chapter raises questions :How to determine subjectively "willful" when applying the punitive infringement ? This question can be divided into two detailed questions: The criteria of "willful" determination and the key factors of "willful" determination.The second chapter analyses the development of the "willful" determination criteria in other countries inthe world and the interpretation of "willful" in other laws in China.Then i propose that "willful" determination should adopt "completely subjective criteria" in patent infringement in China.Finally,i discuss the duty of care's type.The third chapter analyzes the key factors when determine "willful" infringement and discusses the identification of "knowing",also the determination of "hope or indulge" and the fulfillment of the duty of care.