专利惩罚性赔偿构成要件的适用控制与解释进路

修改后的《中华人民共和国专利法》（以下简称《专利法》）自2021年6月1日起施行，其正式引入了惩罚性赔偿制度。在专利惩罚性赔偿制度建立之后，当下的重点应是在民法典和专利法确定的框架内解决司法适用中的进阶性问题，并在法教义解释中推动制度落地。基于域内外双向视角，运用多种法律方法释明以“故意”为表征的主观要件并细化以“情节严重”为要义的行为要件，分析比较基数计算的不同方法、倍数确定的实践要素以及惩罚性赔偿与法定赔偿的适用关系。分析发现，基于利益衡量考量应将主观状态限定为“故意”并作出合理解释，发挥FTO（FreetoOperate,专利自由实施分析）的作用以限制“故意”的适用范围。同时，在区分认定要素和赔偿要素的前提下对“情节严重”作出整体判断。在计算基数时合理考虑“差额利润法”的适用空间，在倍数确定时主客观双向考量实践因素，并将法定赔偿定位为纯粹的补偿性赔偿。解释论路径下构成要件的适用控制应当秉持积极审慎的司法原则，适时调适司法实践与专利政策的互动关系，实现要件之间的功能分隔与适法统一。

Application Control and Interpretation of the Constituent Elements of Patent Punitive Damages

There has been a long-standing debate about the right and wrong of patent pinitive damages. The system of punitive damages in the modern sense originated from the development of the case law practice of common law. It began in the United States after the British case law and made great progress. Among them, based on the "high value" attribute of patent and the bottleneck of patent rights protection which is difficult to break, the system and practice of patent punitive compensation is particularly noticeable. From the perspective of legal technology and legal norms, domestic academic circles have fully demonstrated the institutional advantages, institutional tension and institutional function of patent punitive damages.The amended Patent Law of China which came into force on June1, 2021, officially introduced the punitive damages system. After the establishment of the patent punitive damages system, it should focus on solving the advanced problems in judicial application within the framework determined by the civil code and patent law, and promoting the implementation of the system in the interpretation of legal doctrines.#br#This paper mainly compares the judicial experience, proof standards and identification factors of the United States, starting from the judicial practice in China, uses a variety of legal methods to explain the subjective elements characterized by "intention" and refine the behavioral elements characterized by "seriousness". As for the judicial determination of the amount of patent punitive damages, this paper focuses on the different methods of base calculation by combining with the actual loss, infringement profit and the multiple of license fee, analyzes the practical elements of multiple determination, and defines the applicable relationship between punitive damages and statutory damages.#br#The results show that in terms of the identification of subjective and objective conditions, based on the consideration of interest measurement, the subjective state should be limited to "intention" and reasonable explanation should be made. The difficulty in practice often lies in the rejection of its identification factors. When considering the determination of intention, we can consider "analogical application" as appropriate. Due to the similar nature of rights, the relevant provisions of the trademark law can be applied in the patent field by analogy On the one hand, FTO should be used to limit the scope of application of "intention" and effectively avoid the risk of patent infringement. On the other hand, the government can establish a patent litigation risk analysis system to assist both parties in estimating the risk of patent litigation, strengthen the internal system design of patent risk identification and control, and guide enterprises to establish an integrated patent risk early warning mechanism. In addition, on the premise of distinguishing the identification elements and compensation elements, we make an overall judgment on the "seriousness", pay attention to the organic combination of "intention" and "seriousness", and jointly limit their scope of application according to their combination. As for the judicial determination of the amount of patent punitive damages, we compare from the perspective of the amount of compensation with the actual profits method which is used more frequently in judicial practice, although the amount calculated by the differential profits method will be less than that calculated according to the actual profits method. This method will significantly improve the infringer's willingness to actively prove the difference. Therefore, when calculating the base, we should reasonably consider the applicable space of the differential profits method, consider the practical factors both subjectively and objectively when determining the multiple, and position the legal compensation as pure compensatory compensation.#br#Based on the two-way perspective inside and outside the domain, this paper no longer focuses on the pros and cons of legislation. On the contrary, based on the legislation and judicial practice inside and outside the domain, this paper carries out the path innovation of interpretation theory, focuses on the standardization of judicial application and interpretation path, and grasps the dynamics and continuity of the change of constituent element standards as a whole. As for the different methods of base calculation, this paper advocates that the application possibility of differential profits method should be accepted in order to better balance the legitimate interests of obligees and infringers in case identification. At the same time, it considers the practical factors of multiple determination and straightens out the applicable relationship between punitive damages and statutory damages. The above points of view are not only conducive to reasonably avoiding the judicial abuse of system practice, but also helpful to realize the rational allocation of judicial resources. In short, the application control of constituent elements with interpretative theory should adhere to the positive and prudent judicial principle, timely adjust the interactive relationship between judicial practice and patent policy, and realize the functional separation and legal unity between constituent elements.#br#