Can Increased Damages Deter Patent Infringement?——An Empirical Study of 19,596 Judgments
China has been issuing IPR policies intensively since 2008.One of the pri-mary goals of these policies is to deter infringements by raising their costs.The legislature fol-lows the policies closely by raising the lower and upper limits of statutory damages and introdu-cing 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 a-chieve 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 ad-dition,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 pa-tent-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 di-mensions 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 dama-ges-present a significant and stable deterrent effect.Moreover,as far as the amount of dama-ges is concerned,its subjective attributes have more deterrent effects than its objective attrib-utes.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 cer-tainty and timeliness in order to achieve an optimal deterrent effect.
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