The Intellectual Property Office again explained that not all patent infringements are exculpated

The Intellectual Property Office (“IPO”) indicated yesterday (30) that according to the Patent Law amended and passed last year, the infringement of an invention patent is exculpated; however, the criminal liability for infringement of a utility model patent or a new design patent is still retained.  It is appropriate for the parties to solve the disputes under private rights.

The IPO explained that the legislative policies support to exculpate the infringement of an invention patent inconsideration of the following points: (1) After referring to the legal systems of various countries about whether criminal punishment is imposed on the act of infringing a patent, it is found that most of such legal systems adopt civil remedies. Article 61 of the WTO/TRIPS allows countries to make their own decision on such matter. (2) As an invention patent is involved in complicated technology and legal professional knowledge, it is questionable as to the infringement of such patent establishes and it not easy to judge the infringement.  Meanwhile, according to the industry’s opinion, patent owners, presuming upon the criminal sanction, often claim high royalties for an invention patent. The parties should be allowed to negotiate about royalties based on the market demand and the freedom of contract. (3) To strengthen protection to patent owners, the court may award civil compensation exceeding the amount of damages according to the degree of infringement and raise the maximum of the punitive damages from two times of the amount of damages to three times to produce the deterrent effect.

Source: Economic Daily News 01/31/2002