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

With the completion of the revision of China’s Copyright Law and Patent Law in2020,China has fully established a punitive compensation system in the field of intellectual property.However,although there have been many discussions on this system in both academic and practical circles in China in recent years,it cannot be denied that there are still a series of problems and shortcomings in this system.Through the statistics and summary of existing judicial cases,it is found that the main reasons for the difficulties of the punitive damages system in judicial practice are: Firstly,it is difficult to calculate the base of punitive damages and the judicial discretion is strict;Secondly,The subjective and objective applicable elements are not clear,and the categorization of intentional and serious factual elements is insufficient;Thirdly,The factors that determine the penalty multiplier are chaotic and lack hierarchy and norms.Finally,there is a lack of understanding of the positioning of the punitive compensation system,and there is a functional overlap between statutory compensation and punitive compensation systems.Firstly,intellectual property rights are intangible property rights,and the amount of compensation is difficult to calculate.However,when calculating,the statutory compensation amount should not be directly applied,and other factors need to be taken into account to estimate based on evidence.Clarify the calculation method of the base,in order to solve the problem of unclear standards for determining punitive compensation multiples as much as possible.Secondly,it is necessary to refine the core criteria for determining the constituent elements at the rule level,and to classify and unify the factual elements that meet the criteria.Unify intent as a subjective applicable element,where direct intent includes willpower factors,similar to malice;Include indirect intent as a factor for examining malicious infringement.Consider subjective and objective factors separately,first prove the subjective mentality of the infringer,and then determine the seriousness of the situation.Once again,the determination of multiple factors is actually a secondary consideration of subjective and objective factors.The subjective and objective factors are integrated into two aspects,and the multiple interval indicators are specifically refined according to different objective circumstances.Finally,it is necessary to clearly distinguish the different legislative functions of punitive compensation and statutory compensation at the system level,and form intellectual property infringement compensation rules with clear boundaries between punitive compensation and compensatory compensation.