Patent infringement is a very strong phenomenon. For patent infringement, if the patent is infringed, we need to safeguard our legitimate rights and interests in time.
1. What should I do if the patent is infringed?
After the patent is infringed, there are three solutions. As follows: 1, negotiation and settlement. Both the patentee and the accused infringer may reach a settlement agreement through self-negotiation or mediation by other third parties to resolve the dispute; 2. Administrative adjudication or coordination. The patentee may report to the Patent Office and take administrative measures. After investigating and verifying the infringer's infringement, an administrative penalty shall be imposed. The administrative department may mediate the civil liability of patent infringement; 3. Bring a lawsuit to the court.
Second, several ways to deal with patent infringement disputes
1. Both parties should solve the problem through consultation. Patent infringement disputes belong to civil disputes, which are settled by the parties themselves through consultation, which is conducive to calming down disputes and resolving contradictions.
2. Administrative treatment. It is an important way to realize patent protection for the competent department of patent work to deal with patent infringement disputes.
3. Judicial settlement. The so-called judicial settlement of patent disputes means that in order to effectively punish the infringement of patent rights, give appropriate relief to the obligee and maintain market order, the judicial organs give the patentee the necessary judicial relief.
4. Provisional measures before litigation. Refers to the measures taken to stop the infringement that is being or will be carried out before the lawsuit begins.
Third, the calculation of invention patent infringement compensation
1. The loss of the obligee can be calculated according to the product of the total amount of sales reduction 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 formula is as follows: loss of obligee = decrease in sales of patented products (or decrease in sales of infringing products) * reasonable profit of patented products.
2. It 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. The formula is as follows: infringer's profit = sales volume of infringing products * reasonable profit of infringing products (operating profit or sales profit).
3. It is difficult to determine the loss of the obligee or the interests of the infringer, and the patent license fee is used as a reference. The people's court may reasonably determine the amount of compensation according to the type of the 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.
Legal objectivity:
People's Republic of China (PRC) Civil Code
Article 165
If the actor infringes upon the civil rights and interests of others due to his fault, he shall bear the tort liability.
If the actor is presumed to be at fault according to the law and cannot prove that he is not at fault, he shall bear tort liability.
People's Republic of China (PRC) Civil Code
Article 166
If the actor causes damage to the civil rights and interests of others, regardless of whether the actor is at fault or not, if the law stipulates that he should bear tort liability, such provisions shall prevail.