| The phenomenon of patent infringement in China is becoming more and more serious,and patent protection has problems such as difficulty in proof,high cost,and low compensation.In order to effectively protect the legitimate rights and interests of patentees,China introduced the system of punitive damages,but its legislative purposes cannot be achieved without the determination of the amount of punitive damages."The Amendment to Chinese Patent Law(Draft)" in 2019 provides for both punitive and statutory damages,which is different from the legislative practice in the United States and Taiwan province of China.In order to prevent the confusion of judicial application,the first thing is to find out the difference between the two in the amount determination,so as to clarify the relationship between them:from the perspective of their different legislative purposes and scope of application,both can be stipulated in the patent law at the same time;but from the perspective of the nature of statutory damages and the uncertainty of its amount,It is not the special punitive damages,nor can it be used as the calculation base of punitive damages,so they cannot be used together in justice.Secondly,the punitive damages for patent infringement adopts the calculation method of multiple ratio,based on the determination of its calculation base.By comparing the different provisions on calculation base at home and abroad,and combining with the legislative purpose of punitive damages,it is clear that the scope of calculation base includes actual loss,infringement profit and multiple of patent license fee,and it gives the right of the obligee to choose which calculation base to apply.In view of the deficiency of the existing determination rules of calculation base in China,it is proposed to reduce the causal relationship proof standard and refine the calculation rules.Thirdly,the determination of the amount of punitive damages is also inseparable from the determination of its calculation multiple.By comparing the "treble damages,in the United States,considering the fact that many core technologies in China still rely on imports and the need to prevent patent trolls,it is suggested that the legislative scope of the calculation multiple in China should be changed from "one to five times" to "one to three times",and the subjective and objective factors to be considered in determining the calculation multiple should be clarified.Finally,the determination of the amount of punitive damages is also inseparable from the improvement of its supplementary system:on the one hand,it improves the evidence system in patent infringement litigation,to solve the "low compensation" by solving the"difficulty in proof",so as to guarantee the implementation of punitive compensation system from the procedural aspect;on the other hand,it introduces the evaluation system of patent infringement damages,to solve the "identification difficulty" of compensation amount,so as to guide the judge to determine the amount of punitive damages reasonably. |
