Significant Legal Development on Damage Award in Intellectual Property Infringement Dispute in China
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Partner
United States
I am an intellectual property partner at Bird & Bird China, based in our Shanghai office. Together with our association law firm Lawjay, we have represented numerous companies in achieving excellent results of IP protection in China.
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Recently, a growing number of Chinese intellectual property judgements adopted non-statutory methodologies in calculating damages award. This follows from a recent change in legislation which introduces a new evidentiary rule and punitive damages in case of malicious infringements.
The Chinese courts are exploring innovative approaches on damage award above and beyond the conservative, entirely discretionary statutory basis within a fixed range. This is a welcoming change. Apart from the “Vanillin” trade secret case in which the Supreme People’s Court (“SPC”) awarded RMB 156 million which is remarkable in quantum, we note a positive trend that the Chinese courts are more willing to spend efforts to tackle complex damage calculation issue using an objective rationale in determining the contribution rate of the infringed technology and deciding on the application of punitive damages.
