The Research Of Punitive Compensation System In Patent Infringement

With the rapid development of economy and technology,patent number appears strong growth in our country.The amount of patent applications has become the number one in the global.This reflects our country’s emphasis on innovation.We are hard for from made in China to created in China.With this trend,patent infringement disputes are also growing rapidly.But in the process of dealing with patent infringement dispute,very obvious problems are still existing,which lead to the patentees’ low enthusiasm of right defense.In this way,a good patent trading market can’t form.this situation to some extent hinders the development of innovation.One problem is that in the process of determining compensation amount,statutory compensation has been adopted in large scale,and the legal compensation amount obviously on the low side.Such a situation causes the wide attention among the domestic theorists and judiciaries.The introduction of punitive damages in the field of patent infringement becomes the focus of debate.Although the punitive damages in patent infringement has been very mature in the United States and other countries.It has a history of more than a century, whether the punitive damages system can be transplanted to the soil of rule by law of our country remains to be proven.This paper bases on this background.The paper is divided into four parts.The first part is mainly on the overview of punitive damages in patent infringement.Firstly,from the function of punitive damages in civil infringement,this paper introduces the two main functions of punitive damages in patent infringement,namely punish and deter functions.Secondly,the paper respectively introduces three kinds of theories about the punitive damages’ property,namely civil liability,criminal liability and economic law responsibility.It is concluded that the punitive damages in patent infringement tend to be a kind of civil liability.Lastly,the paper lists the different opinions of the domestic scholars about the punitive compensation introduced to the patent infringement, and refutes opponents’ views one by one.The second part mainly analyzes the necessity of introducing punitive damages into patent infringement.Firstly,considering the completeness of the patent protection system in our country,the paper assumes the three possible solutions,namely adding criminal responsibility, administrative responsibility and punitive damages.Aftercomparison,it concludes that establishing the criminal law or administrative law responsibility can lead to the excessive intervention to the individual freedom of the private law field by.publicpower,and has a high cost of law enforcement.And the administrative law enforcement limited by public resources has to face the problem of efficiency.So, to establish punitive damages is the plan which has the minimum cost but maximum gains.Then the paper summarizes the patent field’s particularities different from the field of traditional civil,such as the invisibility and weak exclusive of the patent right, the concealment and low cost but high profitability of the patent infringement and the difficulty about proofing the exist of patent infringement.All these features determine the need to introduce a special protection system for the patent infringement,namely the system of punitive damages.The third part mainly analyses the feasibility of the introduction of punitive damages to the field of patent infringement in our country.This part firstly introduces the legislative and judicial experiences of domestic and foreign relevant countries,which provide certain reference for the construction of punitive damages for infringement of patent in China.Then the paper coordinates related issues occured after the introduction of punitive damages.The introduction of punitive damages will not conflict with the traditional civil law concepts.Because civil law concepts are not a constant.And carrying the reasonable restrictions on the application of the punitive damages will not cause the patentees’ excessive litigation because of the psychology of pursue profit,also won’t cause excessive punishment to the infringers.So the introduction of punitive damages in the patent infringement is feasible, and no insurmountable difficulties.The fourth part puts forward some suggestions on how to build reasonable punitive damages system in patent infringement in our country.Amongthis,on the subjective aspect the infringer has a patent infringement deliberately,which is needed to prove by the plaintiff.Secondly,on the objective aspect the tort caused the actual loss of the righter.Finally the amount of punitive damages should no more than three times of the amount of compensatory damages.Of course, in some special cases,in order to achieve the purpose of punishment and repression,it is possible to sentence the amount higher than three times according to the discretion of the judge.