1. How to determine the amount of compensation for patent infringement
1. Patent The amount of compensation for infringement is determined according to the following methods:
(1) The amount of compensation for patent infringement shall be based on the actual loss or infringement suffered by the right holder due to the infringement. The benefits obtained by a person due to infringement are determined;
(2) If it is difficult to determine the loss of the right holder or the benefits obtained by the infringer, refer to the patent license fee A multiple of Depending on factors such as the type of patent right, the nature and circumstances of the infringement, a compensation of not less than 30,000 yuan but not more than 5 million yuan will be determined.
2. Legal basis: Article 71 of the "Patent Law of the People's Republic of China"
2. What are the requirements for patent infringement
The elements that constitute patent infringement include two aspects: formal conditions and substantive conditions.
(1) Among them, the formal requirements mainly include:
1. Involved in the performance of the act is a valid Chinese patent;
2. The implementation must be without the permission or authorization of the patentee;
3. The implementation behavior must be for the purpose of production and business operations. It does not matter whether the perpetrator has subjective intentionIt is a formal requirement. However, it can be used as a basis to measure the severity of the circumstances.
(2) Whether the substantive elements constituting patent infringement, that is, technical conditions, and substantive implementation activities fall within the scope of patent protection. If the technical features involved by the actor fall within the scope of patent protection, then the actor has committed patent infringement. There are mainly the following forms of expression:
1. If the technical features involved by the perpetrator are all the same as those of the patent, it constitutes infringement;
2. The perpetrator's technical features are more than those of the patent, which also constitutes infringement;
3. The technical features involved by the actor are either the same or different from the technical features of the patent. However, if the different technical features are equivalent to the technical features of the patent, they still constitute infringement; otherwise, they do not constitute infringement. The equivalence of technical features here means that a person of ordinary skill in the technical field can infer that the effect produced by replacing two technical features with each other is the same.
According to the provisions of the Patent Law, the amount of compensation for infringement of patent rights shall be based on the actual losses suffered by the right holder due to the infringement or the amount gained by the infringer due to the infringement. The interests are determined; if the losses and gains are difficult to determine, they shall be reasonably determined by referring to the multiple of the patent license fee; if the amount of the license fee is difficult to agree on, a compensation of not less than 30,000 yuan but not more than 5 million yuan shall be given. I hope the above content can be helpful to you. If you have other questions, you can click the button below for consultation, or go to the Legal Savior website to consult a professional lawyer.
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