Subjective Criteria of Patent Infringement Compensation in Taiwan: Focusing on Empirical Investigation of Intellectual Property Court’s Decisions

Subjective Criteria of Patent Infringement Compensation in Taiwan: Focusing on Empirical Investigation of Intellectual Property Court’s Decisions

 

Title
Subjective Criteria of Patent Infringement Compensation in Taiwan: Focusing on Empirical Investigation of Intellectual Property Court’s Decisions
Author
Shao-Ting Hong, Richard Li-dar Wang
Keywords
Patent Infringement, Subjective Criteria, Negligence, Willfulness,
Duty of Care
Abstract
Previously, subjective elements of patent infringement compensation were not
stipulated in Taiwanese patent law. Most scholars and courts referred to tort law for
guidance. They initially disagreed on the issue whether the compensation for patent
infringement should be strict liability, negligent liability, or the latter with assumption
of negligence, but over time their view converges and largely considered it as a
type of negligent liability, which is explicitly adopted by the patent law in 2013. In
other words, even though the patent at bar in a litigation is valid and infringed, the
patent owner still has to prove the defendant’s intent or negligence as to the infringement
to recover monetary damages. This paper investigates decisions of the
Intellectual Property Court since its establishment in 2008, in search of practical
standards that the court exploits to assess intent and negligence in patent cases. The findings of this survey indicate that when determining negligence, the scope and
content of the duty of care that the defendant should bear plays a critical role. The
court categorizes defendants with various backgrounds into groups and differs their
duty of care accordingly. In this way, the court actually utilizes multiple standards
in assessing negligence. The judicial practice objectivizes the concept of negligence,
stratifies it for different groups of defendants, and therefore worthy of notice.
Abstract Article

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