According to the current judicial practice, in patent infringement cases, it has become common knowledge in the industry to calculate the infringement compensation based on the interests obtained by the infringer due to infringement (excluding punitive damages), and the compensation amount (base) = sales * profit rate * patent contribution rate (or contribution degree, hereinafter referred to as "contribution rate" for convenience of writing). However, how to determine the patent contribution rate in specific cases has always been a difficult point in practice. The author consulted some judicial decisions in the last five years and found that in most cases, the court pointed out that "the contribution rate of the patent involved was considered" when determining the amount of compensation, but only a few judgments analyzed the contribution rate of the patent in detail and even determined the specific figures of the contribution rate. This paper attempts to summarize the factors that determine the contribution rate of patents by combing the relevant judicial policies and cases, in order to draw lessons from practice.
1. Actual losses suffered by the obligee due to infringement;
2. The benefits obtained by the infringer due to infringement;
3. If it is difficult to determine the loss of the obligee or the benefit obtained by the infringer, it shall be reasonably determined with reference to the multiple of the patent license fee;
4. 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 30,000 yuan and less than 5 million yuan according to the types of patent rights, the nature and circumstances of the infringement and other factors.
Generally speaking, the actual loss of the obligee is difficult to prove, and the patent license fee is relatively clear. However, the amount of damages is determined according to the patent license fee and the court's discretion, which is generally used when the actual loss of the obligee and the interests of the infringer are uncertain. Therefore, in many cases, the court will first determine the interests of the infringer due to infringement. Therefore, to determine how much the infringer benefits, it is natural to use the factor of patent contribution rate.