Research On The Application Of Punitive Damages For Intellectual Property In China

The punitive compensation system for intellectual property rights,which originated from the Anglo-American law system,plays an irreplaceable role in combating intellectual property infringement due to its punishment and containment functions that are not provided by compensatory compensation and statutory compensation.The research on the punitive damages system for intellectual property rights in China has been deepening in academic circles,from the initial introduction of the rationality and feasibility of our country to the unified understanding of practical issues such as specific application.However,in current judicial practice,there are still disputes over the courts’ understanding of the applicable conditions.Different courts have different standards for determining whether to award punitive damages and the specific amount of compensation,which has led to a low application rate of punitive damages in the field of intellectual property rights in China and the inability to fully realize its institutional value.In order to explore the application of punitive damages for intellectual property rights,this article is divided into five parts.In the first part,an overview of punitive damages for intellectual property rights is provided,and theoretical research is conducted on the current legislative status.After that,through empirical analysis,316 judgments explicitly requesting punitive damages in judicial practice in the past year are taken as samples to analyze the current application status of punitive damages in the field of intellectual property rights in China: Although the total amount of applications has increased,the absolute number is relatively small.The reason lies in the deviation in the judge’s understanding of the applicable elements.In some intellectual property infringement cases where punitive damages have been awarded,there are phenomena such as unclear explanations of the amount of compensation,confusion in determining the base number,and arbitrary selection of multiples.In order to improve the application rate of punitive damages and give full play to the role of the system in protecting intellectual property rights,this article,in combination with the latest laws and judicial interpretations issued in China,as well as extraterritorial intellectual property laws and regulations,clarifies the subjective elements of the application of punitive damages for intellectual property rights in the second part.It is believed that intention should be the only subjective element,and the connotation of intention should include indirect intention.Subsequently,the considerations of intention will be explained.In the third part,it clarifies the objective requirements for the application of punitive damages for intellectual property rights,clarifies the relationship between intent and seriousness of the circumstances,and demonstrates the necessity of their status as parallel requirements for punitive damages for intellectual property rights.After that,it provides a detailed understanding of the specific circumstances of severity of the circumstances specified in existing legal provisions,and explores the establishment of a dynamic identification system to improve the flexibility of judging the seriousness of the circumstances in judicial practice,Match the value orientations of different interest subjects.In the fourth part,the method for determining the base of punitive damages for intellectual property rights is clarified.Clarify the applicable order and method of the base number.Due to the fact that the application rate of licensing fees in China is less than one tenth of that in foreign countries,it is necessary to increase the application rate of the base determination method in China to change the current situation of the virtual establishment,and clarify that China should not use legal compensation as a punitive compensation base.In the fifth part,it is clear how to determine the multiple of punitive damages for intellectual property rights.China can try the factor analysis method to decompose and quantify the factors that affect the multiple,including the subjective malignancy of the infringer and the severity of the infringement,using objective criteria instead of discretion,and comprehensively and prudently considering the specific multiple in combination with the determined base amount.