Study On The Standard Of Punitive Damages For Patent Infringement

Unlike traditional property rights,the immaterial nature of patent rights determines that patent infringement is hidden,long-term and dynamic,and these characteristics lead to many difficulties in the application of the punitive damages system for patent infringement.In order to increase the protection of patent rights and encourage innovation,China established a punitive damages system for patent infringement in Article 71 of the Patent Law as amended in 2020,and the Supreme People’s Court issued a relevant judicial interpretation in 2021,so the construction of a punitive damages system for patent infringement in China is becoming more and more perfect.However,in judicial practice,there are still problems of difficulty in determining the applicable elements of punitive damages for patent infringement and difficulty in calculating the amount of punitive damages for patent infringement,and the system of punitive damages for patent infringement is often put on the shelf.It is the premise of a reasonable and effective application of the punitive damages system for patent infringement that the standards of the punitive damages system for patent infringement are clarified,and therefore it is particularly crucial to improve the standards of the punitive damages system for patent infringement.In order to analyze the current situation of the application of punitive damages for patent infringement,this article summarizes and collates 418 valid cases involving punitive damages for patent infringement from three platforms,namely "China Judgment Instrument Website","Beida Fabao Website" and "Jufa Case".This paper analyzes 418 valid cases involving punitive damages for patent infringement on the three platforms of "China Judicial Documents Website","Beida Fabao Website" and "Jufa Case",and analyzes the basic situation of the sample cases and the current situation of application of punitive damages for patent infringement by combining macroscopic and microscopic approaches.The characteristics of the standard of punitive damages for patent infringement in China.On the basis of the empirical analysis,the problems in the application of the standard of punitive damages for patent infringement were summarized: difficulties in determining the "intentionality" of punitive damages for patent infringement,difficulties in determining the "seriousness" of punitive damages for patent infringement,difficulties in determining the base amount of punitive damages for patent infringement,and difficulties in determining the base amount of punitive damages for patent infringement.It is difficult to determine the base amount of punitive damages for patent infringement,and it is difficult to determine the multiplier of punitive damages for patent infringement.By analyzing the changes in the standards of punitive damages for patent infringement in common law and civil law countries and regions,as well as the existing legal provisions and relevant cases,it can be seen that the conditions for the application of punitive damages for patent infringement in foreign countries have become stricter and the calculation of the amount has become more refined,and there are experiences in legislation and judicial practice that can be drawn on in China.Based on the existing domestic and foreign theories,and based on China’s judicial practice,we propose recommendations on the application of the standard of punitive damages for patent infringement in practice: Firstly,to improve the standard for determining "intentional" punitive damages for patent infringement,to clarify the subjective factors for determining "intentional",and to clarify the subjective factors for determining "intentional".The first is to improve the criteria for determining "intentional" punitive damages for patent infringement,to clarify the subjective factors for determining "intentional" and to clarify the objective manifestations of "intentional".The second is to improve the criteria for determining "aggravated circumstances" for punitive damages for patent infringement,clarify the relationship between "intentional" and "aggravated circumstances",and refine the factors for considering "aggravated circumstances".The second is to improve the criteria for determining punitive damages for patent infringement.Thirdly,to improve the criteria for calculating the basis of punitive damages for patent infringement,to abolish the limitation on the order of determining the basis,to improve the determination of the actual loss suffered due to infringement,to improve the determination of the benefit obtained by the infringer,to improve the determination of the multiple of patent license fee,and to calculate the basis of punitive damages by discretionary compensation.Fourthly,to improve the criteria for calculating the multiplier of punitive damages for patent infringement,refine the factors for consideration of the multiplier,and determine the multiplier of punitive damages by a dynamic system.