How to compensate for patent infringement
1. Lost profits
Article 20, Paragraph 3 of the High Court Regulation: The benefits obtained by the infringer due to infringement can be calculated based on the product of the total number of sales of the infringing products on the market multiplied by the reasonable profit of each infringing product. The benefits obtained by an infringer due to infringement are generally calculated based on the infringer's business profits. For infringers who are solely engaged in infringement, they can be calculated based on sales profits. What needs to be noted here is the difference between operating profit and sales profit in the accounting system.
Formula 1: The loss of the right holder = the total reduction in sales of patented products caused by infringement * the reasonable profit of each product
Formula 2: The right holder’s loss = the total number of infringing products sold on the market * the reasonable profit of each product2. Profit from infringement
Article 20, Paragraph 3 of the High Court Regulations: The benefits obtained by the infringer due to infringement can be based on the total number of sales of the infringing product on the market Calculated by multiplying the product of the reasonable profit of each infringing product. The benefits obtained by an infringer due to infringement are generally calculated based on the infringer's business profits. For infringers who are solely engaged in infringement, they can be calculated based on sales profits. What needs to be noted here is the difference between operating profit and sales profit in the accounting system.
Formula: The infringer's profit = the number of infringing products sold on the market * the profit of each infringing product (generally calculated based on operating profit, in special cases based on sales Profit calculation)
3. Amount of license fee compensation for infringement of patent rights
High Court Regulations No. 21 Article: If it is difficult to determine the losses of the infringed party or the benefits gained by the infringer, and there is a patent license fee that can be used as a reference, the People's Court may, based on the type of patent right, the nature and circumstances of the infringement, the amount of the patent license fee, and the amount of the patent license fee. The nature and scope of the patent license,Depending on time and other factors, the amount of compensation shall be reasonably determined with reference to 1 to 3 times the patent license fee. Referring to licensing fees, the biggest difference between patents and trademarks is that trademarks are directly calculated based on licensing fees, while patents are punitive and can be compensated up to three times the amount. In our country, compensation for intellectual property infringement generally adopts the principle of compensation, that is, compensation is based on the amount of loss. There is no punitive compensation. Only compensation for copyright infringement can be calculated based on 2-5 times of the copyright fee. In addition, compensation for patent infringement is applicable License fees can be somewhat punitive when used to calculate infringement damages.
4. Statutory compensation
Article 21 of the High Court Regulations: Loss or infringement of the infringed party It is difficult to determine the benefits obtained by the person... If there is no patent license fee to refer to or the patent license fee is obviously unreasonable, the people's court may, based on factors such as the type of patent right, the nature and circumstances of the infringer's infringement, generally set a limit of RMB 10,000 The amount of compensation shall be determined between RMB 1 million and RMB 1 million, and the maximum amount shall not exceed RMB 1 million RMB.
5. Reasonable litigation expenses
The third revision of the Patent Law clearly stipulates that the amount of compensation should also be Including reasonable expenses paid by the right owner to stop the infringement. In the practice of patent infringement trials, one view is that the plaintiff should provide evidence to prove that it has conducted corresponding investigations, stopped the infringement, and submitted corresponding bills. It will be supported within the scope. If the party fails to submit a legal and valid instrument, it will not be supported. There is also a view that as long as the plaintiff investigates and stops the infringement, corresponding expenses will inevitably be incurred, and the defendant should compensate for reasonable expenses. It does not require the plaintiff to submit legal and valid bills. The court can determine the amount of reasonable expenses based on usual standards. . The author agrees with the second view, because without the defendant's infringement, the plaintiff's expenses to stop the infringement would not have occurred. The law stipulates that the defendant should compensate the plaintiff for losses, which include not only the market losses caused by the defendant's infringement, but also the costs paid by the plaintiff to stop the infringement, because this part of the cost is due to the defendant's infringement.
According to common sense, if the plaintiff conducts corresponding investigations and evidence collection, hires lawyers to file lawsuits, etc., corresponding expenses will inevitably be incurred, even if the plaintiff fails to submit corresponding documents for various reasons. evidence, but the expenditure must have been incurred. Based on the principle of comprehensive compensation, the court should support it within a reasonable range based on usual standards. It cannot be because the plaintiff cannot file a claim. Relevant evidence is presented but not supported.
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