Intellectual property is the fruit of intellectual labour and the source of innovative development。
General secretary xi described the importance of intellectual property work in five “relations” — relations between the state's system of governance and its capacity for governance, relations of high quality development, people's well-being, relations between the state and the outside world, and national security。
For too long, abuses in the area of intellectual property rights have become more frequent, and issues such as the protection of rights by rights-holders as “proven difficulties, long periods, low compensation and high costs” have received much social attention and are a worldwide challenge。
How can punitive damages in the area of intellectual property be promoted to work? How can the notion that “infringement of intellectual property is the theft of another person's property” be made deeper
Judicial protection is an important force in the intellectual property protection system and plays an irreplaceable and crucial role。
In recent years, the people's court has been firmly engaged in the deployment of central decision-making, the establishment of the intellectual property tribunal of the supreme people's court and the relevant intellectual property court, the ongoing reform of the intellectual property justice system, its full functioning, the active construction of rules of evidence, procedural rules and adjudication that are consistent with the rules governing intellectual property cases, and the creation of exemplary and punitive reparation cases that lead market subjects to exercise self-determination to prevent the risk of violations。
Let the violators pay the real money
The high incidence of intellectual property violations is undoubtedly a problem. In order to effectively deter abuses of intellectual property rights, the cost of violations, including tort damages, must be increased。
The “compensation dilemma” of knowledge-based abuse cases is a worldwide challenge in intellectual property trials. In judicial practice, the wisdom of the people's courts is tested by the definition of the actual loss of the rights holder, the benefit of the abuser's violation, the definition of the subjective “bad faith” of the abuser and the objective “serious” circumstances of the violation。
In recent years, the people's court has explored ways to increase penalties in specific cases, including the application of punitive damages and criminal fines in accordance with the law, the application of a system of evidentiary impediments to determine the amount of damages, the imposition of severe penalties for violations of the law, the protection of the legitimate rights and interests of the right-holders and the effective maintenance of market order。
The people's courts apply punitive damages in accordance with the law, in violation of the principles of good faith and good faith, without honouring their commitments
In a dispute concerning the violation of trademark rights in the case of balancing body corp. V. Yongkang one sports equipment co. Ltd., the perpetrator used another person's registered trademark to make profit from the actual sale in various ways, such as at exhibitions, the city of wisdom, etc., the perpetrator promised not to violate the right to the same trademark, but then again violated the right to the same trademark, for which the people's court of the pudong district of shanghai applied the three-fold punitive compensation standard in accordance with the law。
Refusal to provide the corresponding evidentiary material without just cause, and the people's court applies the system of proof to calculate damages in accordance with the law -
In a dispute over patent rights to inventions, such as shenzhen tsien tsien teng teng teng ltd. V. Shenzhen city, the rights holder had submitted evidence of the quantity and price of the products complained of, the court had ordered the victim to submit evidence such as complete financial book information reflecting the production and sale of the products complained of, and the victim had refused to do so for no reasonable reason. The supreme people's court had fully safeguarded the rights holder's interests by applying a system of evidentiary impediments to the calculation of damages。
Direct losses are difficult to calculate, and people's courts calculate the amount of compensation by applying, for example, the gains made by the infringer —
In the case of hangzhou owners electronics, inc. Et al. V. Boss electric hong kong international (china) inc. Trademark rights and undue competition dispute, the zhejiang provincial high people's court, based on evidence of the quantity of sales submitted by the infringer in another case, the price of products sold on the infringer's website and the profit margin in the rights holder's annual newspaper, fully supported the $10 million claims of rights holders, reflecting the value orientation of increasing intellectual property protection。
Promote the integrity of the punitive compensation system
The civil code expressly provides that “intentional infringement of the intellectual property rights of others, in serious circumstances, the person against whom the violation is committed has the right to seek the corresponding punitive damages”
Punitive compensation for intellectual property rights has thus entered the era of legal protection。
In the process of drafting and amending laws such as the civil code, the patent act and the copyright act, the people's court has been actively involved in the submission of a number of recommendations and has continued to contribute to the improvement of the punitive compensation system. The supreme people's court has issued successive judicial interpretations and normative opinions so that more severe penalties for violations of the law can be imposed —
(a) the provisions of the supreme people's court on the review of certain questions of the law applicable to the preservation of intellectual property disputes, detailing the system for the preservation of acts that protect intellectual property in a timely and effective manner
(a) the opinion of the supreme people's court on the comprehensive strengthening of judicial protection of intellectual property, which sets out a series of initiatives to effectively reduce the cost of defending intellectual property rights, significantly reduce the cycle of proceedings for intellectual property rights, effectively increase the amount of compensation for violations and punish intellectual property offences in accordance with the law
(a) the opinion of the supreme people's court on increasing penalties for intellectual property violations in accordance with the law, which focuses on measures such as the preservation of conduct, preservation of evidence, obstruction of evidence, cessation of violations, punitive compensation, legal compensation and heavy criminal penalties, in order to effectively enhance the effectiveness of judicial protection
Certain provisions of the supreme people's court on evidence in civil proceedings for intellectual property regulate the burden of proof, preservation of evidence, etc. In civil proceedings for intellectual property ..
These judicial documents help to guide rights-holders to defend their rights efficiently and effectively and to guide adjudicators to protect intellectual property rights in accordance with the law, thereby effectively deterring abuses of intellectual property rights。
It is understood that the supreme people's court is currently studying the development of a judicial interpretation of a number of issues relating to the application of punitive damages to intellectual property rights, and is promoting the speedy realization of the punitive compensation system. With the efforts of the people's courts and the relevant departments, a system of redress for torts that can fully realize the value of intellectual property will be on track。
Best knowledge of product protection to create the best business environment
Facilitated proceedings and adequate and prompt judicial remedies are closely linked to the business environment。
Intellectual property rights, particularly patents, have strong technical and legal attributes, and related disputes tend to have complex legal relationships and longer litigation cycles. If the abuser continues to commit, and even expands, the violation during the proceedings, it would seriously violate the rights holder's market share, competitive advantage, etc., and lead the rights holder to “win the market”。
How can the efficiency of trials be improved in specific cases, violations promptly prevented and rights-holders protected
The shenzhen intellectual property tribunal, in shenzhen city, daeji innovation technology co. Ltd. V. Beijing fumi technology co. Ltd., and shenzhen ten-day (shenzhen) ltd., in their dispute over the infringement of patent rights in relation to the appearance of design, issued a pre-judgment to stop the infringement of the facts of patent infringement that have been established, in the form of a “preliminary judgement + interim injunction”, accompanied by an interim injunction, with the immediate deterrent effect of an interim injunction, to maximize the value of the pre-judice judgement and to fully protect the interests of the patentee。
It is also a microcosm of the right to effective and timely redress for rights holders of patent rights that has been actively explored by intellectual property jurisdictions throughout the country。
In recent years, the supreme people's court has issued a series of legal documents on procedures, rules of evidence, etc., aimed at reducing the burden of proof on rights-holders, lowering the costs of defending their rights and reducing the duration of proceedings. These include the requirement of active, comprehensive, correct and honest testimony by the parties, the elaboration and clarification of the evidence and time periods that the parties should provide, the improvement of the system of preservation of evidence and judicial identification, the identification of the system of provision of evidence and the system of impediments to proof, which would greatly facilitate the defence of rights-holders and facilitate the smooth conduct of the proceedings。
The price to be paid to the abuser and to the innovators to take the judicially protected “conservative pill” to make the business environment and market order more equitable, open and transparent ... Tilling, moving forward and the people's courts are drawing a whole new picture of the judicial protection of intellectual property。
Expert assessment
Protecting intellectual property is protecting innovation
Professor, ph. D. Graduate director, people's university of china division
Kwok
In october and november 2020, amendments to patent and copyright laws were finally adopted by the legislature. In less than three years, our single law on intellectual property rights has been amended successively, raising the level of protection to an unprecedented level. Effective protection of intellectual property rights was essential to achieving a shift in the chinese economy to an innovation-driven development model. Over the years, intellectual property protection has been considered to be “proven, proliferating, low compensation and high cost”. To address these problems, there have been systematic legislative changes。
First, the civil code, which has just been in force, directly introduces punitive compensation for intentional infringement of intellectual property rights in serious cases. This is undoubtedly a breakthrough for a country with a tradition of statutory law. The separate law on intellectual property establishes operational norms for the implementation of punitive compensation systems. Punitive damages are calculated as many as five times more than the united states law, which is known as high compensation。
Second, with respect to the difficulty of proof, the relevant law further explores the system of preservation of conduct, allocation of the burden of proof, and introduces new norms such as provision of an instrument, pre-suit preservation, etc., in order to address the persistent difficulties of proof in intellectual property proceedings. Third, each single-line law has significantly increased the court's statutory limit of compensation to $5 million. This undoubtedly has an important role to play in containing violations. On this basis, the judiciary can take full advantage of these new rules to effectively protect intellectual property rights in accordance with the law and to truly protect the protection of an innovative state。
