The concept of statutory damages was first introduced into the Chinese patent regime in 2001 as a “last-resort” approach for damages calculation in infringement cases. Curiously, in the following 15 years, this last-resort approach became so popular among the courts that it is essentially the exclusive approach today. This Article examines the legal and policy implications of the current statutory damages scheme, and concludes that the existence of statutory damages is fundamentally detrimental to the validity of the Chinese patent system. Therefore, we argue that the statutory damages provision in Article 65 of the Patent Law of China should be eliminated. This Article further provides a comparative law perspective, drawing lessons from U.S. copyright law, U.S. patent law, and German patent law, to illustrate that China’s patent system would be better off without this statutory damages provision.
Xiaowu Li & Don Wang,
Chinese Patent Law's Statutory Damages Provision: The One Size That Fits None,
26 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wilj/vol26/iss2/3