专利侵权损害中不宜引入惩罚性赔偿

Punitive Damages should not be Introduced in Infringement Damage of Patent

民事司法主要依照补偿性赔偿原则进行损害赔偿确定,而惩罚性赔偿原则仅被确定在与公共利益和社会秩序相关的法律关系中。作为侵权高发领域,专利损害后的足额赔偿问题一直是学界争论的焦点。针对补偿性赔偿对专利权人不能有效止损,有学者建议在实践中采用惩罚性赔偿原则。但这种提议也有很多理论上无法周全和实践中无法有效应用的不足,而且忽视了我国是制造业大国和技术追赶型国家的国情。因此,要切实保障专利权人的合法权益,还是应该在现有立法框架内寻求方法,惩罚性赔偿不是维护专利权人财产的绝佳方式,也不是适合我国国情的制度设计。

The principle of compensatory compensation is the main basis of civil judicial determination of dama-ges,while the principle of punitive damages is only used in the legal relationship related to public interests andsocial order. As a field of high incidence of infringement,the full compensation after patent damage has alwaysbeen the focus of academic debate. In view of the compensatory damages,the patent owners can not effectivelycompensate for the losses. Some scholars suggest that punitive damages should be adopted in the practice of patentdamages. However,this proposal has many shortcomings that can not be fully applied in theory and can not be ef-fectively applied in practice,and it ignores the situation of China as a big manufacturing and technology catchingcountry. However,there existed incompleteness of this proposal in theory and ineffective application in practice.What’s more,they ignored China’s national condition that it is the largest manufacturing and technology catch-up country. Therefore,in order to effectively protect the legitimate rights and interests of the patent holder,the ju-diciary and the parties should seek ways within the existing legislative framework. Punitive damages are neither anexcellent way to protect the property of the patent owner nor a system suitable for China’s national conditions.