Study On The Determination Of The Amount Of Punitive Damages For Patent Infringement

With the construction of an innovative country in China,it has become a consensus to strengthen the protection of patent rights.Although the civil code of the People’s Republic of China(hereinafter referred to as the "civil code")and the fourth revision of the patent law of the People’s Republic of China(hereinafter referred to as the "patent law")are rules the punitive compensation system,to intensify the protection of the patent holder,but the above two laws on how to determine the amount of punitive damages for the regulation of principle,only On the base of compensation and compensation for the determination of multiple rules to make a more detailed rules,the provisions of the relevant judicial explanation for both is not perfect,lead to the patentee is hard to get effective protection of legitimate rights and interests,is far less than on the infringer of penalties,therefore our country should strengthen the study of patent rules the punitive compensation amount,In order to improve the level of patent protection in China.Through empirical analysis,this paper finds that in judicial practice when determining the amount of patent punitive damages,it is difficult to determine the compensation base and the lack of a unified standard to determine the multiple.In view of the difficulty in determining the compensation base,the standard of proof of causality can be lowered through the Panduit four elements method,and the loss of price erosion,loss of the supporting product or non-patented product,and increased cost can be included in the scope of actual loss to improve the determination rules of actual loss.By reasonably distributing the burden of proof to reduce the difficulty of the patentee’s proof,using the market analysis method to determine the proportion of technology apportionment and the way of calculating the profit from infringement by the marginal profit,the determination rules of the profit from infringement are more perfect.By introducing the hypothetical negotiation method,perfecting the prior reference license agreement method,and clarifying the upper and lower limits of license fee multiple and specific considerations,the reasonable license fee determination rules are improved.In view of the lack of unified standards for multiple determination,this paper proposes that multiple quantification rules should be established,and at the same time,the weight of each situation should be reasonably determined,the subjective and objective factors should be perfected,and the determination steps of multiple should be perfected,so as to solve the problems existing in the determination rules of compensation multiple.Only by improving the determination rules of compensation base and compensation multiple,can the amount of patent punitive damages be determined more scientifically and the system of punitive damages play its due function.