Study On The Application Of Punitive Damages In Patent Infringement

In the judicial practice of patent infringement,the burden of infringement liability has already fallen into the dilemma of uneven distribution of evidential burden,high application rate of statutory damages and low amount of compensation.In order to effectively curb the malicious infringement and make up for the insufficiency of system supply,it is necessary to introduce punitive damages system into the patent law of our country.From the perspective of the historical orientation and theoretical development of punitive damages in patent infringement,the differences in functional orientation have a decisive impact on the selection of the application elements and the determination of the amount of punitive damages in patent infringement.At present,the historical orientation of the loss filling function has failed to solve the practical problems such as "low level of compensation".The punishment function rooted in the theory of retaliation and the deterrence function based on are gradually accepted by the theoretical and practical circles.However,the expression of "punitive" in punitive damages is easy to blur the deterrence function in its functional orientation.In fact,in view of the nature of punitive damages as liability rules,the continuity of innovation activities and the wide existence of design around phenomenon,it shows that the punitive damages system for patent infringement in China should focus on deterrence positioning and try to dilute the color of punishment.Accurate positioning of the function of punitive damages system is helpful to clarify the application elements and amount calculation of punitive damages in patent infringement.The specific application of punitive damages in patent infringement should strictly distinguish the substantive and procedural elements,the establishment of liability and the burden of liability.In terms of the application of procedural elements,if the plaintiff not actively claiming punitive damages before the end of the court debate in the first instance,the court shall not actively invoke the punitive damages clause;punitive damages and compensatory damages belong to the same legal relationship,and the latter is the calculation basis of the former,so it is not suitable to put forward the punitive claim separately from the compensatory claim.The application of substantive elements includes the following three aspects: the first is the determination of "willfulness ",the second is the judgment of "serious nature",and the last is the determination of the amount of compensation.Willfulness can be divided into "actually know" and "should know".The evaluation factors include whether the infringer has negotiated licensing matters with the patentee or received the notification letter or complaint information sent by the patentee before the end of the infringement,and whether he is prosecuted or involved in the settlement due to the same patent involved."Serious nature" should refer to the infringer's failure to perform the duty of care after knowing the patent involved.The evaluation factors include whether the infringer has actively sought the opinions of a qualified lawyer,whether he has filed a lawsuit for invalidation of the patent involved,etc.The discretionary factors of punitive damages include but are not limited to: whether the infringer takes the infringement as his business,the number of violations,the solvency of the defendant,etc.To sum up,the main function of punitive damages in patent infringement is to curb the infringement,and part of the punitive function is also considered.In the application of patent infringement,we should strictly limit the application conditions of punitive damages system,try to refine its discretion factors,and coordinate the relationship between punitive damages system and other systems.