1. degree of innovation: patents with high degree of innovation will also be protected in judicial practice.
2. Value factors: including licensing fees, sales price and profit rate of patented or infringing products, etc.
3. Infringement nature: whether it is production, sale, promised sale (generally between 6,543,800 yuan and 20,000 yuan) or use.
4. The subjective malice of the infringer. Generally speaking, the degree of subjective malice of infringers can be divided into intentional (such as repeated infringement) or negligence.
5. Infringement duration: This factor is a very important factor in infringement judgment. If a patent lasts for one year, the minimum amount should be more than 654.38 million yuan, which is the minimum distribution. If the profit of the product is relatively high, even if there are no other factors, just prove that the product has lasted for about one year, generally 200,000, 300,000 or even 500,000.
6. Sales volume of infringing products: it is difficult to obtain as a plaintiff. Even if you apply to the court for preservation, the scene may not be true, and it is difficult for the plaintiff to prove it, but you can make an estimate, and the workers invited and the products made can make a basic estimate.
7. Consumer market of infringing products.
8. The business scale of the infringer: including the size of the business premises, whether it is in a prosperous business premises, the number of employees, registered capital, etc.
9. Infringement place: If it happens in a well-known exhibition at home and abroad, such as the Canton Fair, it is not good to have infringement here, and there is a great intention to grab business.
Legal basis: Article 65 of the Patent Law of People's Republic of China (PRC) determines the amount of compensation for patent infringement according to the actual losses suffered by the obligee due to infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement. If it is difficult to determine the loss of the obligee or the interests of the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee. The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement.
If it is difficult to determine the loss of the obligee, the benefits obtained by the infringer and the patent license fee, the people's court may determine the compensation of more than 1 10,000 yuan and less than1100,000 yuan according to the type of patent right, the nature and circumstances of the infringement.
"Several Provisions of the Supreme People's Court on Applicable Laws in Trial of Patent Disputes" Article 14 The actual loss suffered by the obligee due to infringement as stipulated in Article 65 of the Patent Law can be calculated according to the product of the reduction of the total sales of patented products caused by infringement multiplied by the reasonable profit of each patented product. If it is difficult to determine the total number of sales reduced by the obligee, the product of the total number of infringing products sold in the market multiplied by the reasonable profit of each patented product can be regarded as the actual loss suffered by the obligee due to infringement.
The benefits obtained by the infringer due to infringement as stipulated in Article 65 of the Patent Law can be calculated by multiplying the total number of infringing products sold in the market by the reasonable profit of each infringing product. The benefits obtained by the infringer due to infringement are generally calculated according to the operating profit of the infringer, and can be calculated according to the sales profit for the infringer who is completely engaged in infringement.
Article 15 of the Provisions of the Supreme People's Court on the Applicable Law in the Trial of Patent Dispute Cases states that it is difficult to determine the loss of the obligee or the interests of the infringer. If there is a reference to the patent license fee, the people's court may reasonably determine the amount of compensation according to the type of patent right, the nature and circumstances of the infringement, the nature, scope and time of the patent license, and refer to the multiple of the patent license fee. If there is no reference to the patent license fee or the patent license fee is obviously unreasonable, the people's court may determine the amount of compensation according to the type of patent right, the nature and circumstances of the infringement and other factors, in accordance with the provisions of the second paragraph of Article 65 of the Patent Law.
Article 16 of the Provisions of the Supreme People's Court on the Applicable Law in the Trial of Patent Dispute Cases: If the obligee claims to have paid a reasonable fee to stop the infringement, the people's court may calculate the compensation beyond the amount determined in Article 65 of the Patent Law.