提高损害赔偿数额能否威慑专利侵权?——基于19596份裁判文书的实证分析

Can Increased Damages Deter Patent Infringement?——An Empirical Study of 19,596 Judgments

在公共政策的制定、立法和司法活动中,“提高损害赔偿可以威慑专利侵权”往往被当作不证自明的真理而广泛应用。然而,损害赔偿客观属性的变化如何作用于潜在侵权人的主观行为,其理论路径和实践效果皆不清晰。参照对威慑理论研究较为深入的犯罪学成果,可以构建兼具立体维度和中介条件的专利侵权损害赔偿威慑机制理论模型。对上述理论进行实证检验可以发现,“高赔偿”作为当下威慑侵权的主要制度工具,威慑效力十分有限,反而是常常被忽略的赔偿确定性和及时性呈现出显著而稳定的威慑效力。而且,仅就损害赔偿数额高低而言,其主观属性比客观属性更具威慑效力。因此,应当重新思考单纯追求高赔偿的若干法律规则的合理性问题,构建兼具确定性和及时性的立体威慑机制,用“疏而不漏”代替“小惩大诫”,以期达到最优的威慑侵权效果。

China has been issuing IPR policies intensively since 2008.One of the primary goals of these policies is to deter infringements by raising their costs.The legislature follows the policies closely by raising the lower and upper limits of statutory damages and introducing punitive damages.In response,courts at all levels have started to grant higher-than-ever patent damages and vigorously publicized these cases in official reports.This shows that,in both public policies and legislative and judicial activities,“increasing damages can deter patent infringement”has been taken as a self-evident rule.However,pursuing high damages to achieve strong deterrence has caused a large number of theoretical and practical dilemmas.For instance,punitive damages of up to five times have become available in all three major fields of intellectual property law since 2020,making Chinese Mainland a jurisdiction with the highest multiple and widest coverage of punitive damages around the globe.But a crucial theoretical question-how to justify the high multiple and wide coverage-has been left unanswered.In addition,the Chinese Patent Law has a lower limit for statutory damages,which has increased from RMB 5,000 yuan in 2001 to RMB 30,000 yuan in 2020.As a result,courts are faced with the dilemma of either violating the black-letter law or overcompensating the patent holder.In practice,it is common for Chinese courts to break the lower limit due to the low value of the patent-at-issue and the minor loss of the patent holder.This article first examines the“self-evident rule”of“increasing damages can deter patent infringement”and points out its limitations.Then,taking the more advanced deterrence theory in criminology as a reference,it constructs a theoretical model of the deterrent mechanism for patent infringement damages with multiple dimensions and intermediary conditions.In the end,this article conducts empirical analyses to test the above theories.It finds that,surprisingly,high damages have a very limited deterrent effect,while other two factors that are often overlooked-the certainty and timeliness of damages-present a significant and stable deterrent effect.Moreover,as far as the amount of damages is concerned,its subjective attributes have more deterrent effects than its objective attributes.Therefore,it is necessary to rethink the issue of whether to abolish the legal rules that simply pursue high damages and build a multi-dimensional deterrent mechanism with high certainty and timeliness in order to achieve an optimal deterrent effect.