First, the significance of patent punitive damages system
The introduction of punitive damages system will significantly increase the illegal cost and resolutely punish the infringement of intellectual property rights according to law. This is an important measure to create a better business environment in the context of China's economy entering a new era of high-quality development, implementing the innovation-driven development strategy, expanding opening up, and promoting economic transformation and upgrading and supply-side structural reform. Accordingly, China's current trademark law, the patent law being revised and other intellectual property fields have introduced or will introduce punitive damages system.
The introduction of punitive compensation system for intellectual property rights can significantly increase the illegal cost, aiming at deterring and curbing criminal acts of malicious infringement of intellectual property rights, better safeguarding the interests of obligees, enhancing the awareness of the whole society to respect the intellectual property rights of others, and improving the level of intellectual property protection in China. However, the author notes that as a new thing, the public and even many parties to intellectual property disputes still misunderstand the concept, connotation and judgment expectation of this system, and often confuse punitive damages with compensatory damages, mental damages and aggravated damages, and even think that punitive damages violate the fair trade principle of market economy and misinterpret the original intention of introducing this system. Therefore, the author thinks it is necessary to clarify some biased understandings in practice.
First of all, punitive damages for intellectual property rights will damage fair trade in a market economy. Some people think that in economic activities, everyone is an equal commercial subject, and there is no relationship between punishment and non-punishment. If the compensation obtained by the party who holds the technology or patent is far higher than the actual damage, obtaining this "windfall" violates the principle of fair trade in the market economy.
At present, the compensation for intellectual property rights in China is mainly compensatory compensation, and the amount is determined according to the actual loss, infringement interests and license fees of the obligee. If the above calculation basis cannot be proved by evidence, the court will determine the amount of compensation as appropriate according to law. In practice, most patent infringement cases have to adopt the legal compensation standard because it is difficult to prove the actual loss, infringement interest and license fee. However, due to the generally low amount of legal compensation, it is often difficult for the right holder to really make up for his actual loss. The introduction of punitive damages system takes into account the high cost of patentee's rights protection and corrects this inequality in real economic activities. Through the punitive compensation system, the patentee is provided with sufficient compensation, and the infringer is severely punished, so as to restore the equal value relationship between the infringer and the patentee and effectively maintain a fair and just market economic order. In this way, the legally authorized patentee will not lose money because the infringer encroaches on the market share, but will more actively promote the patented technology in the market according to the authorization, and the patentee will also enthusiastically invest in patent R&D, forming a benign interaction between patent R&D and market promotion, and then completely jump out of the vicious circle of lack of market incentives for patent R&D investment and lack of promotion motivation in the patent licensing market in the past, effectively promoting healthy and orderly economic development.
The second is punitive compensation for intellectual property rights, which belongs to compensation for mental damage. Some people think that punitive damages are much higher than compensatory damages, in order to let the patentee get spiritual comfort through adequate economic compensation.
Punitive damages generally require malicious infringement, which often causes certain mental damage to the patentee, but punitive damages are not based on the mental damage actually suffered by the victim. Compensation for mental damage is an independent cause of compensation, which can be counted as actual loss alongside material loss, and compensatory compensation can be calculated based on this actual loss. Punitive damages are added to compensatory damages, and a certain amount or proportion of punitive damages are added to compensatory damages, which is punitive damages. Even if there is no mental damage, the infringer may be liable for punitive damages as long as his subjective malice is obvious and morally imputable. Moreover, because mental damage can not be calculated by the amount of money, it is difficult to prove the specific damage, and mental damage compensation has not been included in the scope of intellectual property damage compensation in legal practice at present.
Third, punitive damages for intellectual property rights belong to aggravated damages. For example, in the "Wang Lao Ji" trademark dispute case, Jiaduobao Group was awarded compensation for economic losses related to GPHL and reasonable rights protection expenses of 1 100 million yuan, which reflected the shocking power of punitive damages for intellectual property rights.
In fact, the huge compensation in the trademark infringement case between GPHL and Jiaduobao was made by the court according to the calculation basis of Jiaduobao's infringement interests. The court held that Jiaduobao's infringement was seriously malicious, and it refused to provide data and account books of infringing interests without justifiable reasons, which made it impossible to identify infringing interests and constituted an obstacle to proof. Therefore, the preliminary evidence of Jiaduobao's infringement interests submitted by GPHL was accepted and the judgment of aggravated compensation was made. This aggravated compensation is different from punitive compensation. Aggravated compensation still belongs to the category of compensatory compensation, in order to make up for the losses suffered by the infringed. The function of punitive damages is not to fill the infringer's losses, but to punish and sanction the infringer's serious faults. Punitive damages is an additional form of civil liability, which is borne by the malicious infringer in accordance with the law and the court's judgment when compensatory damages are insufficient to curb the malicious infringement of the infringer or show that the law completely denies this behavior, and the amount of compensation exceeds the actual loss of the infringer. Therefore, punitive damages make the infringer's illegal cost far higher than the illegal income, thus effectively curbing and cracking down on intellectual property infringement.
To sum up, punitive damages have intensified the crackdown on malicious infringement of intellectual property rights and made the infringer pay a heavy price. The implementation of this system will effectively alleviate the difficulties of difficult proof, high cost, low compensation and poor effect of intellectual property protection, strengthen the confidence of enterprises in intellectual property protection, greatly enhance China's innovation environment and create a good business environment.
Second, the establishment of punitive damages system in environmental infringement:
(A) clear the applicable conditions of punitive damages system
1, subjectively intentional or grossly negligent.
2. Infringement is illegal.
3. Infringement will cause damage.
4. There is a causal relationship between the damage result and the tort.
(two) clear the calculation principle of punitive damages.
As the punitive damages system is a new thing in the field of environmental tort in China, in order to balance the interests between the offender and the victim and realize social justice, the subjective attitude of the offender, economic strength, profit situation, whether the offender is a first-time offender or a recidivist, the damage result of the victim and environmental interests and social and economic development should be considered when calculating the amount of punitive damages.
(three) clear the defense of punitive damages
In order to embody the spirit of legal justice, China's Tort Liability Law stipulates the defense reasons of tort liability, including the victim's intention, the third party's infringement, emergency avoidance, force majeure and so on. Because of the particularity of punitive damages system and the complexity of environmental tort, it is particularly important to clarify the defense of environmental tort liability when applying punitive damages system in environmental tort.
(D) the establishment of environmental tort punitive damages fund
Environmental tort is different from general tort, and the damage caused by environmental tort often has the characteristics of wide range, large number of victims, serious consequences and long incubation period. Therefore, in environmental tort, some victims often file environmental lawsuits, while some victims who are still in the latent stage fail to file lawsuits. It is against the spirit of legal fairness to compensate only the former and not the latter. In order to eliminate this unfair phenomenon, the author thinks that a punitive compensation fund should be established in environmental infringement.
Third, the system of punitive damages for infringement.
Punitive damages, also known as punitive damages, is a kind of monetary compensation that the injurer pays the victim more than the actual amount of damage. It is a compensation system that integrates the functions of compensation, punishment and containment.
Applicable conditions of punitive damages
First, the infringer has subjective intention, that is, knowing that the defective product is still being produced and sold;
Second, there must be damage facts, not general damage facts, but serious damage facts, that is, causing death or serious health damage to others;
Third, there must be a causal relationship, that is, the death or serious damage to the health of the infringed person is caused by the defective products produced or sold by the infringer. The article also stipulates the scope of application of punitive damages, that is, it applies to the range where the infringed person dies or his health is seriously damaged, and punitive damages do not apply to other damages, such as the property damage of the infringed person. In order to prevent the abuse of punitive damages and the abnormally high amount of compensation demanded by the infringed, this article stipulates that the infringed has the right to request corresponding punitive damages. The correspondence here mainly means that the amount of liquidated damages demanded by the infringer should be equal to the malicious intent of the infringer, the damage consequences caused by the infringer and the deterrent effect on the infringer. The specific amount of compensation shall be determined by the people's court according to the specific circumstances.
The above is about the significance of the patent punitive damages system. Punitive damages of intellectual property rights will damage fair trade in market economy. Some people think that in economic activities, everyone is an equal commercial subject, and there is no relationship between punishment and non-punishment. You can consult a lawyer if you have any questions.