I. Calculation method of compensation
Enterprises know that Article 60 of the Patent Law stipulates: "The amount of compensation for patent infringement shall be determined according to the losses suffered by the obligee or the interests gained by the infringer due to infringement; If it is difficult to determine the loss of the infringer or the interests of the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee. " This article provides three methods for calculating patent infringement compensation:
1. Losses suffered by the infringed party due to infringement
2. The infringer benefits from the infringement.
3. Charge the patent license fee in multiples.
Article 2 1 of "Several Provisions of the Supreme People's Court on Applicable Laws in the Trial of Patent Disputes" stipulates: "If it is difficult to determine the loss of the infringed person or the benefit of the infringer, there is no patent license fee to refer to or the patent license fee is obviously unreasonable, the people's court may determine the amount of compensation from 5,000 yuan to 300,000 yuan according to the type of patent right, with the maximum not exceeding 500,000 yuan. Which is legal compensation.
Compared with trademark infringement compensation, patent infringement can be calculated according to the multiple of patent license fee.
Article 20 of the High Court stipulates: "When the people's court investigates the infringer's liability for compensation according to the first paragraph of Article 57 of the Patent Law, it may determine the amount of compensation according to the obligee's request according to the losses suffered by the obligee or the interests gained by the infringer." Patent infringers can choose the first or second way to calculate infringement compensation. If the first and second methods cannot be calculated, you can choose to apply the third calculation method. If the third calculation method is still not applicable, then choose the fourth calculation method. The four calculation methods are applied in turn.
Second, the benefits that the infringer gets from the infringement.
Paragraph 3 of Article 20 stipulated by the High Court: "The benefits obtained by the infringer due to infringement 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. For infringers who are completely engaged in infringement, they can be calculated according to the sales profit. " Here we need to pay attention to the difference between operating profit and sales profit in the accounting system.
Three. Losses suffered by the infringed party due to infringement.
Paragraph 2 of Article 20 of the Supreme People's Court stipulates: "The losses suffered by the obligee due to infringement can be calculated by multiplying the total sales volume of patented products of the patentee caused by infringement by the reasonable profit of each patented product. If it is difficult to determine the total number of sales reduced by the right holder, 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 loss suffered by the right holder due to infringement. "
Four, according to the multiple patent license fee.
Article 2 1 of the high court stipulates: "If it is difficult to determine the infringer's loss or the infringer's interest, and there is a patent license fee for reference, the people's court may reasonably determine the compensation amount according to the type of patent right, the nature and circumstances of the infringer's infringement, the amount of patent license fee, and the nature, scope and time of patent license, with reference to/kloc-0 to 3 times of the patent license fee." When it comes to licensing fees, the biggest difference between patents and trademarks is that trademarks are directly calculated according to licensing fees, while patents are punitive and can be compensated less than three times. In China, intellectual property infringement compensation generally adopts the principle of compensation, that is, there is no punitive compensation, and only in copyright infringement compensation, the compensation amount can be calculated according to 2-5 times of the manuscript fee. In addition, patent infringement compensation can be punitive when the license fee is applied to calculate infringement compensation.
Verb (abbreviation of verb) Application of the fourth calculation method (legal compensation)
Article 2 1 of the High Court stipulates: "If the loss of the infringed person or the benefit of the infringer is difficult to determine ... there is no patent license fee to refer to 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 infringer's infringement, etc., generally ranging from RMB 5,000 to RMB 300,000, with a maximum of RMB 500,000." The legal compensation for patent infringement is similar to that for trademarks, but the minimum legal compensation for patents is 5,000 yuan and the maximum is generally 300,000 yuan.
Six, about reasonable expenses
Article 22 of the High Court stipulates: "The people's court may, according to the request of the obligee and the specific case, calculate the reasonable expenses paid by the obligee to investigate and stop the infringement within the scope of compensation." This provision is similar to trademark, but the provision on trademark infringement compensation clearly points out that lawyer's fees can be regarded as reasonable expenses. In practice, lawyers will also calculate the lawyer's fees and the fees for investigation and evidence collection as reasonable fees.