| General Secretary Xi pointed out at the Fourth Plenary Session of the 19 th Central Committee that my country’s property rights and intellectual property protection systems should be further improved.Continuously strengthening the protection of patent rights has become a problem that needs to be solved urgently.With the provision of punitive damages for patent infringement in the Civil Code and the newly revised Patent Law,the protection of patent rights in my country has also reached a whole new level.However,after the epidemic,with the rapid recovery of my country’s economy and the gradual implementation of the intellectual property strategy,some problems with patent protection in my country have gradually emerged.The Standing Committee of the National People’s Congress conducted enforcement inspections on the implementation of the Patent Law and Copyright Law in 2014 and 2017 respectively.The inspection report pointed out that there were problems such as low compensation in intellectual property cases.The low amount of compensation for infringement of intellectual property rights,on the one hand,makes it difficult for the right holder to make up for the losses,and on the other hand,makes it difficult to effectively curb intellectual property infringement.In addition,in the field of intellectual property rights,even though the trademark law has introduced a punitive damages system several years before the patent law,its low application rate has undoubtedly sounded the alarm for punitive damages in patent infringement.As General Secretary Xi Jinping emphasized when presiding over the 25 th collective study session of the Political Bureau of the Central Committee on November 30,2020: “Impactly implement the system of punitive damages for intellectual property rights.” Under the current circumstances,there is an urgent need to further improve the punitive damages for patent infringement.Specifically applicable.First of all,my country’s Patent Law stipulates that the specific application of punitive damages must be applied only when the perpetrator’s subjective intentions and the circumstances are serious.How to determine whether the accused infringer has a deliberate subjective mentality and whether his behavior is consistent with the serious circumstances is The core issue of applying punitive damages.In addition,in patent infringement cases,what criteria and factors should be used to determine whether the infringer has subjective intent and whether it can complete the subjective intent determination for some reasons when engaging in patent infringement The defenses and other issues will be explained one by one in the analysis and discussion after this article.In addition,in extraterritorial law,the United States has established the "intentional" determination standard and reference factors through a wealth of precedents in judicial practice,and the standard is not static,but is based on the effects of national patent policies and laws.Changes are constantly being adjusted.Therefore,this article is based on the relevant theoretical research and judicial practice outside the territory,combined with the interpretation of the existing connotation of intention in other legal departments of our country,and analyzes the standard of "intentional" identification in patent infringement and the key factors for identification of intentional infringement.,In order to benefit the relevant application of punitive damages in future judicial practice.In addition,the constitutive requirements of serious circumstances need to be clarified.Serious circumstances may lead to repeated evaluations with subjective intentions.At the same time,vague judgment standards will also make it difficult to make a determination in practice.Therefore,by combining with my country’s current judicial practice,it is necessary to jointly determine the seriousness of the circumstances from the two levels of the seriousness of the illegal act and the seriousness of the damage result.In addition,the specific application of punitive damages also needs to be explained.First of all,it is necessary to clarify the difference and connection with compensatory damages and statutory damages,and make it clear that the actual losses,benefits,and patent license fees are used.To calculate the problems that arise when punitive damages are calculated.Since in practice,statutory compensation is often the most widely used calculation method,the order of application of this calculation method has also been overlooked,and the infringer has a natural disadvantage in providing evidence.Therefore,in the future improvement,The order of application of the calculation methods stipulated in the current legal provisions should be adjusted,independent and parallel ranks should be clearly defined,the parties should be given the right to choose freely,and the corresponding evidence rules should be improved.The evidence disclosure and superior evidence rules should be adopted to reduce the pressure of proof. |
