In the case that the product has been awarded patent infringement by the court, the subsequent air conditioning products produced by the infringer still use our patented technology, and the company can only Sue again. " In the face of competitors' knowingly committing offenses, Wen Kuang Yu, director of Intellectual Property Office of Gree Electric Appliance Co., Ltd. (hereinafter referred to as Gree Electric), chose to be "tough", but the old problems of low compensation and difficult proof in patent litigation make him headache. The new punitive damages system added in the fourth patent law amendment is expected to solve the above problems. The draft amendment to the patent law adjusts the amount of compensation for intentional infringement to more than one time but less than five times, increases the statutory compensation from 1 million yuan to 5 million yuan, and stipulates the relevant burden of proof for the infringer. In this regard, Tao Xinliang, honorary president of the school of intellectual property of Dalian University of technology, said, "the system of punitive damages not only provides a clear legal basis for the court to judge the serious malicious patent infringement with punitive damages, but also has a certain deterrent effect on the malicious infringers who have been repeatedly banned, and has also improved the enthusiasm of patentees to protect their rights according to law. It can be said that this measure is not only a "Curse" to regulate intentional infringement, but also an "accelerator" to promote scientific and technological innovation. "
01 intentional infringement will be severely punished
Intentional infringement makes the right holders often fall into the "marathon" protection of rights. To solve this problem, the infringers need to pay a heavy price.
Gree is one of the victims of intentional infringement. According to Wen Kuang Yu, in 2015, Gree Electric found that a series of products produced and sold by an air conditioning enterprise were suspected of infringing its patent rights. The company then filed a lawsuit with the Guangzhou intellectual property court, which ordered the defendant to immediately stop the infringement and compensate Gree Electric with an economic loss of 800000 yuan.
However, the court decision did not stop the infringer from infringing, and he continued to engage in patent infringement. Gree Electric then filed a lawsuit against the above-mentioned air-conditioning enterprises to the court again. After hearing, the courts of first and second instance held that the air-conditioning enterprises sued still produced and sold a large number of infringing products after the court had judged that they constituted patent infringement, with serious infringement nature and obvious malicious infringement. Therefore, it is necessary to stop the infringement immediately and compensate Gree Electric with economic losses of 40 million yuan.
The provisions of the draft amendment to the Patent Law on the regulation of intentional infringement increase the confidence of enterprises like Gree Electric appliances in protecting patent rights. According to Article 71 of the second draft, if the circumstances are serious, the amount of compensation may be determined according to the amount of one to five times of the amount determined. If it is difficult to determine the loss of the obligee, the interests obtained by the infringer and the royalty of the patent license, the people's court may, according to the type of the patent right, the nature and circumstances of the infringement, determine to pay compensation of less than 5 million yuan.
"The newly added punitive damages system in the draft increases the illegal cost of intentional infringement, helps to prevent the occurrence of multiple intentional torts at the source, and effectively deter the intentional tortfeasor psychologically." Wen Kuang Yu said that the clause improves the economic compensation obtained by innovation subjects in safeguarding their rights, which is conducive to enhancing the enthusiasm of rights protection and making the innovation subjects have no worries.
According to Song Jian, a senior intellectual property judge of Jiangsu Higher People's court, China needs to be cautious when applying punitive damages in the field of patent law. "Patent cases are different from trademark cases, and malicious trademark attachment is often very obvious. However, patent involves technical problems, so the determination of infringement is more complex. In addition, patent right has the risk of being declared invalid. If the punitive damages are not applied properly, it will not only not promote innovation, but also curb innovation, and affect the enthusiasm of R & D personnel in technological innovation. Therefore, when applying punitive damages, the court must be extremely cautious and strictly grasp the applicable conditions. " Song Jian said.
02 redistribution of burden of proof
Being lazy in providing evidence, the infringer often has a fluke mentality in litigation, and thinks that the obligee has no evidence and is not responsible for the infringement.
In patent litigation, many rights holders are faced with the dilemma that they are unable to obtain evidence from the place where the infringing products are located, and cannot grasp the sales volume and sales volume of the infringing products. In order to solve this problem, Article 71 of the second draft amendment to the patent law stipulates that, in order to determine the amount of compensation, the court may order the infringer to provide books and materials related to the infringement if the obligee has tried his best to provide the books and materials related to the infringement, and the infringer does not provide or provide false account books and materials The court may determine the amount of compensation by referring to the claim and the evidence provided by the obligee.
"This clause is mainly to solve the problem of proof difficulty in patent litigation. In the protection of patent rights, Gree Electric often encounters the situation that the defendant refuses to provide evidence. " Wen Kuang Yu, for example, said that in the patent infringement case of Gree Electric Appliance against an air conditioning enterprise, only the online sales data of the defendant on the mainstream e-commerce platform could be obtained, and the sales of the defendant's off-line exclusive stores could not be obtained, which made the court unable to find out the defendant's infringement profit.
Wen Kuang Yu said that if the above provisions are implemented, the court can determine the defendant's infringement profit based on the plaintiff's claim and the evidence in the case, which will greatly reduce the difficulty for the patentee to provide evidence and help to solve the pain point of the difficulty in proving evidence in patent litigation.
At present, China's patent litigation follows the principle of "who claims, who provides evidence". The plaintiff often has difficulty in proving and often has no strength. "If the clause is implemented, it will greatly reduce the burden of proof of the patentee as the plaintiff of patent infringement cases, effectively solve the problem of the defendant's slack or false proof in patent litigation, and effectively improve the trial level and trial effectiveness of patent litigation cases." Tao Xinliang said.
In Song Jian's opinion, if the above provisions are put into effect, the court can order the infringer to provide financial account books in the judicial trial, which helps to encourage the patentee to determine the amount of compensation through calculation as much as possible; at the same time, it can also force the defendant to actively defend against the calculation method of compensation amount, and promote the solution of the difficulty in calculating the amount of compensation.
Low compensation, difficult proof With the fourth amendment of the patent law, it is expected that the related problems in China's patent litigation will be solved. The system of punitive damages is expected to become a "Curse" to crack down on intentional infringement and a "booster" to promote scientific and technological innovation.
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