| At the time of the fourth revision of the patent law,the legislators referred to the practice of the United States and stipulated the punitive compensation system in the first paragraph of Article 68 of the revised draft of the patent law of the people's Republic of China(Draft for examination).On December 5,2018,the revised draft of Patent Law(Draft for review)reviewed and passed by the executive meeting of the State Council clearly stipulated punitive compensation.According to its provisions: for the subjective "intentional" infringement of patent rights,the people's court can make a judgment to pay punitive damages.China's patent law limits the application threshold of punitive damages to "intention".Punitive compensation for patent infringement is aimed at the subjective state of the infringer."Actual knowledge" is the subjective knowledge element of the actor,which is used to prove the subjective consciousness state of the actor."Actual knowledge" is generally judged from the behavior of the actor and the evidence of what he knows or does."Actual knowledge" is a key factor among many factors in the subjective elements of proving actor in the application of punitive damages.Scholars in China have different interpretations on the subjective "intention" of the actor in patent punitive damages,such as "intentional","malicious","willful","intentional".This is bound to lead to the identification of "actual knowledge" in patent punitive damages.In judicial practice,it is difficult to prove the "actual knowledge".The object of the patent right is the intangible intellectual achievement,and the right boundary of the patent right is recorded in the "claims".Therefore,in the application of patent punitive damages,in addition to the specific content of subjective knowledge elements "actual knowledge",we need some specific reference factors to identify "actual knowledge".As a system of compensation,punishment and containment,punitive compensation is mainly used in American law,which is inherent in the United States Therefore,this paper mainly analyzes the specific content and factors of "actual knowledge" in the United States and its practice in patent law.In the United States,the elements of punitive liability generally include the following:(1)subjective elements;(2)the wrongfulness and moral reprehensibility of the act;(3)the consequences of damage.At present,the minimum threshold of applying punitive compensation subjective elements in the United States is "recklessness" In American law,"recklessness" is defined as "such an act,the actor does not pursue the occurrence of damage consequences,but can foresee the possibility of damage consequences and intentionally take risks",or as "the subjective state that the actor is not interested in the consequences of his act"."Actual knowledge" is one of many factors in the subjective elements of proving actor in the application of punitive damages.Under the subjective condition of "intention" or "malice",it is easier to identify the actor's "actual knowledge",as long as it is proved that the actor "knows that his behavior will hurt specific victims,or even that his behavior may hurt specific victims".This paper focuses on the proof of the actor's "actual knowledge" under the subjective condition of "recklessness".When punitive compensation is applied to "drunk driving",in the subjective elements of "recklessness" of the actor,the identification of "actual knowledge" of the actor is to prove that the actor "knows the possible dangerous consequences of his behavior".When applying punitive damages in large-scale product liability cases,in the actor's "reckless" subjective elements,the identification of the actor's "actual knowledge" does not need the actor's understanding of specific victims,nor the actor's actual understanding of the product defects that cause harm.When punitive damages are applied in copyright infringement or trademark infringement,in the subjective elements of "recklessness" of the actor,the identification of "actual knowledge" of the actor does not need the actual understanding of the relevant rights of the infringer.Punitive damages for patent infringement in the United States are almost always accompanied by the birth and development of the United States Patent Law.American judicial practice has accumulated about two centuries of historical experience in the application of punitive damages,and is in the trend of continuous development and refinement.The premise of punitive compensation for patent infringement in the United States is to constitute intentional infringement.In read corp.v.portec,Inc,the U.S.Court of Appeals for the Federal Circuit cited nine non exhaustive reference factors for determining intentional infringement:(1)after knowing that another's patent is protected,whether the infringer has investigated the scope of protection of the patent and believes in good faith that his patent is invalid or his own act does not infringe the patent;(2)whether the infringer intentionally copies other's ideas or designs;(3)the behavior of the infringer in the lawsuit;(4)the scale of production and economic situation of the infringer;(5)the degree of relevance of the case;(6)the duration of the defendant's illegal behavior;(7)whether the defendant has ever taken remedial behavior;(8)the defendant's intention for damage;(9)whether the defendant attempts to hide the illegal behavior."However,there are different standards on how to identify intentional infringement in different periods of American history.From the standard of "positive obligation of reasonable attention" in Underwater case,to the standard of "objective recklessness" in Seagate case,to the standard of "subjective recklessness" in the latest Halo case.The reason is that the cold war in the 1980 s was in the middle and late period.The United States attached great importance to the development of science and technology and patent protection,so it was relatively harsh on infringers In the determination of "intention",the standard of "positive obligation of reasonable attention" is adopted,which requires the accused infringer to have higher burden of proof.Since the 21 st century,patent balance protection seems to be a new focus.On the one hand,the law should protect the innovation of science and technology,on the other hand,it should also take into account the balance of social interests.In the aspect of patent punitive damages,the Federal Circuit Court created the standard of "objective recklessness" and the two-step identification law of "intention",which requires higher burden of proof for the patentee However,in the latest halo case,the Supreme Court realized that the standard of "objective recklessness" was too harsh for the patentee,which was not conducive to protecting the interests of the patentee.It believed that the element of "subjective recklessness" itself was enough to impose punitive damages.This paper reviews the cases of punitive damages for patent in the United States.It can be seen that in the punitive damages for patent infringement,the content of "actual knowledge" proof is not the same as the subjective elements of proving infringers.Under the "positive obligation of reasonable attention",the obligee is required to prove that the accused infringer "actually knows" the existence of the patent right;under the "objective recklessness",the obligee is required to prove "the accused infringer actually knows or obviously should know the risk of infringement";under the recent "subjective recklessness",the obligee is required to prove "the accused infringer knows the patent".Therefore,there are two situations in the "actual knowledge" proof of patent punitive compensation: one is the existence of the "actual knowledge" patent right of the accused infringer;the other is the risk of the "actual knowledge" patent right infringement of the accused infringer.China's patent law amendment draft(Draft for comments)increases the provisions of intentional infringement of patent rights and three times compensation,which is related to the current mass and repeated intentional infringement in China.It is necessary to improve the protection of patent rights and the deterrence against infringement,increase the amount of compensation,strengthen the protection of patent rights and encourage innovation.Therefore,the author suggests that in the application of "actual knowledge" in the judicial practice of punitive damages for patent in China,only the patentee is required to prove that the accused infringer "knows others' patent rights" or "understands others' patent" by referring to the evidence of "actual knowledge" in the United States under the "standard of positive obligation of reasonable attention".On the other hand,the infringer "knows others' patent rights" or "knows others' patent" may put the accused infringer in the risk of punitive damages.In order to avoid the liability of punitive damages,manufacturers and R &D personnel will have a strong motivation not to read or learn any patent documents of similar products or methods."They think that what you know will undoubtedly hurt you,so it's usually better not to know." This phenomenon is called "intentional disregard".Then this paper puts forward suggestions on how to prove the specific factors of "the accused infringer actually knows the existence of patent" in the future judicial practice.And from patent disclosure,infringement notice,patent labeling and other aspects to be analyzed.For the "patent disclosure" system,when applying punitive compensation,considering the cost of patent retrieval,we can not infer that the patent authorization announcement has the legal effect of "actual knowledge" or "should know" to the public by the publicity effect of the patent authorization announcement.On the other hand,to investigate the quality of patent search of the accused infringer can help the court to find out the fact that the infringer "actually knows" the existence of patent right from the "intentional disregard" of the infringer to a certain extent.For "patent labeling",it is suggested that China should learn from the practice of the United States,encourage the patentee to take the initiative to "declare the right" and mark the patent on the product.In terms of social cost,it is more conducive to the protection of rights.For "infringement notice",patent infringement notice can be used to prove that the accused infringer "actually knows" the existence of the patent.However,considering that China has just introduced the patent punitive compensation system,the eligibility standard of infringement notice should not be too high?... |
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