Research On The System Of Punitive Damages For Patent Infringement In China

In recent years,with the intensification of China-United States trade war,our country of the patent right is more and more attention,for its protection also increasing,article seventy-one of the patent law(2020)established a patent infringement punitive damages system,formed the compensatory damages,legal damages and punitive damages three compensation ways of patent infringement compensation system,however,There are still some disputes on the application requirements,identification standards and compensation basis of punitive damages,which need to be explored theoretically.Based on existing research and the actual situation of legislation and judicial practice at home and abroad,this paper designs a research framework,carries out in-depth research and puts forward countermeasures and suggestions centering on four main axes: "Overview of the system itself","application and development of extraterritorial systems","existing problems in the system" and "targeted suggestions".In the part of "System ontology Content overview",it aims to explore the core content and connotation of patent infringement punitive compensation system.The establishment of punitive damages for patent infringement has a profound theoretical basis,which is supported by revenge theory,utilitarianism and interest balance theory.Compared with the theory of "public law attribute" and "fusion attribute",punitive damages is more consistent with the theory of "private law attribute",and its institutional functions include compensation function,punishment function,prevention function and incentive function.Since the system is in its infancy,its application is less,but the relevant laws and regulations are rapidly introduced to supplement and improve it.In the part of "The application and development of extraterritorial system",it aims to seek the reference significance of extraterritorial experience for China.Punitive damages originated from the protection of patent rights in the United Kingdom,but gradually developed and improved in the United States,and widely applied in the judicial practice of the United States,and gradually recognized and accepted by Germany,Japan and other civil law countries.The applicable experience of our country outside China mainly includes: punitive damages in punitive damages is not exclusive with the concept of civil law;The applicable requirements require the defendant to be intentional,but not malicious,and the infringed must have actual losses.In the application of punitive damages in the process should also pay attention to its reasonable restrictions.The part of "existing problems in the system" aims to find the possible problems in the system of punitive damages for patent infringement.In terms of procedure,the law is not clear whether it can be applied in some procedures,nor does it stipulate partial inversion of the burden of proof,so that the plaintiff’s burden of proof is too heavy.Meanwhile,courts in different regions have different understandings of the application requirements of punitive damages,which further leads to regional differences in application.In substance,high compensation may lead to the abuse of punitive damages,and also aggravate the breeding risk of "patent cockroaches";It is difficult to determine the amount of compensation due to the large legal compensation range and many factors to be considered.There are some overlapping conflicts between punitive compensation system and legal compensation system.In the part of "targeted suggestions",in view of the problems found,it is suggested to improve the procedures of patent infringement punitive damages system,including the application of pre-litigation mediation and arbitration procedures,the implementation of partial inversion of the burden of proof,etc.To prevent the abuse of punitive damages and regulate "patent cockroaches";Refine relevant compensation standards;Coordinate the relationship between it and statutory compensation.We will comprehensively improve the system of punitive compensation for patent infringement.