On Punitive Damages In Patent Infringement

Due to the characteristics of patents, compensatory damage principle has many deficiencies when applying to patent infringement cases. When it comes to PRC, the low amount of damage compensation in China’s judicial practice, results in the cost and benefit imbalance between infringers and right-holders according to their behavior, thus leads to the current dilemma for remedies against patent infringement, that is, more and more infringers are emerging while less right-holder can receive remedies. Punitive damages for remedies against patent infringement have many institutional values, such as applying to characteristics of patent infringement, effectively preventing patent infringement from mass outbreak and encouraging right-holders to seek remedies and make transactions.On the application of punitive damages for remedies against patent infringement, it has some requisite conditions, such as intentional and serious infringement by an infringer. The amount of punitive damages should be counted based on compensatory damages, and also determined by factors like right-holder’s loss, infringer’s profits, or reasonable license fee. But right-holder’s reasonable expenses paid to stop infringement should not be calculated as the basis of punitive damages. There are also several factors to be considered when determining punitive damages, for instance, culpability of infringement, property status or paying capacity of an infringer, profits made from infringement by right-holder, and state policy orientation. The way to determine punitive infringement can be calculated by compensatory damages as the basis, but the amount shall not exceed many times of compensatory damages.This article includes the following four chapters: ChapterⅠdiscusses the concept, feature, value, function, history of punitive damages. ChapterⅡ, from the perspective of empirical analysis, sums up current status of punitive damages and remedies against patent infringement in China, and makes an in-depth analysis of existing problems and solutions for remedies against patent infringement, focusing on the liability identification and handling during the judicial practice. ChapterⅢ, from the perspective of legal principle, elaborates the institutional value and feasibility of introducing punitive damages into remedies against patent infringement. Chapter Ⅳgives some ideas and suggestions for the construction and application of punitive damages for remedies against patent infringement, and discusses the principles, scope, and constituent elements of punitive damages applicable to patent infringement, as well as how the amount of punitive infringement is determined.