A Study On The Application Of The Principle Of Proportionality To Punitive Damages In Intellectual Property

In order to increase the cost of infringement and encourage continuous innovation of intellectual property rights,China has established a comprehensive punitive damages system for intellectual property rights,and the number of intellectual property disputes in which punitive damages are applied is increasing in judicial practice.However,there are many difficulties in the application of the punitive damages of intellectual property rights in judicial practice,mainly manifested in the unclear scope of the applicable conditions,the difficulty in determining the calculation base,the strong arbitrariness of the damages multiplier,and the proliferation of the alternative application of statutory damages.Neither the academic discussion on solving the dilemma of application,nor the attempts to solve the dilemma of application through judicial interpretation or guiding legal documents in practice have solved the problem at root.The structural analysis of the proportionality principle can solve the dilemma of the application of punitive damages of intellectual property under the guidance of the legislative purpose,so as to guarantee the system to play its proper role.Moreover,as a restrictive methodology,the principle of proportionality can limit the application of the IPR punitive damages within the scope of its legislative purpose and prevent the abuse of the IPR punitive damages.For this reason,the application of the principle of proportionality in the punitive damages of intellectual property rights should be given attention.It is generally believed that the specific connotation of the proportion principle includes the principle of appropriateness,the principle of necessity and the principle of balance,and it can be found that the principle of proportion embodies the value concept of justice,the prohibition of excess and the balance of interests.Moreover,the principle of proportion has shown a trend of being applied to private laws including civil law and intellectual property law,which lays a foundation for the reasonable application of the principle of proportion in the punitive damages of intellectual property rights.And intellectual property punitive damages should guarantee the type of justice,prevent the system is abused,and balance the interests of the relief and behavior freedom,the value concept of proportional principle can meet the above needs at the same time,makes the proportional principle has the necessity of intellectual property punitive damages.The compatibility,commonality or consistency between the value concept of the proportionality principle and the application mechanism of "fairness and justice",the institutional requirement of "optimal deterrence" and the legal principle of "balance of interests" guarantee the feasibility of the proportional principle in the punitive damages of intellectual property.On this basis,by combing the outside of intellectual property punitive damages of the application of proportional principle,we find that the United States has applied the principle of proportionality to the "dynamic system theory" in the punitive damages of intellectual property,the United Kingdom has combined the principle of proportionality with the jury system in the punitive damages of intellectual property,Canada through the proportional principle of comprehensive consideration of the intellectual property punitive damages to make a reasonable decision.From the perspective of judicial practice,we examine the current situation of the proportional principle of intellectual property punitive damages system in China,and find that the proportional principle of the application condition of intellectual property punitive damages is missing in the judgment and the generalization of the applicable conditions and the limitation of the proportional principle of the determination of punitive damages.In the definition of intellectual property legal compensation and punitive damages confuse the functions of legal compensation and punitive compensation in judicial practice,and the punitive damages of intellectual property falls into the provisions.Based on the analysis of the above parts and the useful experience of the countries outside the region,some suggestions are put forward for the specific application of the proportional principle in the intellectual property punitive damages.In terms of the conditions of application,it is proposed that the subjective conditions of the IPR punitive damages should be limited to direct intent according to the principle of proportionality,and the objective conditions should adopt the dynamic system theory under the guidance of the principle of proportionality,while the subjective conditions and objective conditions should be adopted in parallel.In terms of the certainty of the amount of punitive damages for intellectual property rights,the principle of proportionality guarantees discretionary damages as the basis for calculation,and the principle of proportionality guides the determination of the multiplier of punitive damages within the scope of the list of factors for consideration of punitive damages.In the distinction between statutory damages and punitive damages,the principle of proportionality clarifies the compensatory nature of statutory damages,refuses to give statutory damages a punitive function,and guarantees that statutory damages and punitive damages for intellectual property rights each perform their respective functions.