What is the compensation standard for patent infringement?
Article 1000 of the Civil Code stipulates: "If the actor bears civil liabilities such as eliminating influence, restoring reputation and apologizing for violating personality rights, it should be commensurate with the specific way of the act and the scope of influence caused. If the actor refuses to bear the civil liability stipulated in the preceding paragraph, the people's court may publish an announcement or an effective judgment document in newspapers, internet and other media, and the expenses incurred shall be borne by the actor.
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Article 4 of the Supreme People's Court's Answers to Several Questions in the Trial of Patent Disputes stipulates that the compensation for patent infringement damages should implement the principle of fairness, so that the actual losses suffered by the patentee due to infringement can be reasonably compensated. The amount of damages for patent infringement can be calculated according to the following methods:
(1) The amount of damages shall be the actual economic losses suffered by the patentee due to the infringement. The calculation method is: because the infringing products of the infringer (including products produced by other people's patented methods) are sold in the market, the sales volume of the patented products of the patentee is reduced, and the product of the total sales volume reduction multiplied by the profit income of each patented product is the actual economic loss of the patentee.
(2) Take all the profits obtained by the infringer due to infringement as the amount of compensation for losses. The calculation method is: the product of the profit obtained by the infringer from each infringing product (including products produced by others' patented methods) multiplied by the total amount sold in the market is the total profit obtained by the infringer.
(3) Take a reasonable amount not less than the patent license fee as the amount of compensation for losses. For the above three calculation methods, the people's court may choose to apply them according to the different circumstances of the case. If both parties agree to use other calculation methods to calculate the compensation for losses, the people's court may allow it as long as it is fair and reasonable.
Calculation method of patent infringement compensation
The third paragraph of Article 20 stipulated by the High Court: "The benefits obtained by the infringer due to infringement can be calculated according to the product of the total number of infringing products sold in the market multiplied 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. "
This provision is similar to that of trademarks, and the calculation method is clearer than that of trademarks. In addition, there is an additional foundation. If the infringer takes infringement as his occupation, the operating profit and sales profit are different in the accounting system, and the sales profit should be greater than the operating profit, and the sales profit is better than the operating profit. This provision provides calculation convenience for infringers.
Paragraph 2 of Article 20 of the High Court stipulates: "The loss suffered by the obligee due to infringement can be calculated by multiplying the total sales reduction of patented products 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. "
Generally speaking, the losses suffered by patent infringers due to infringement are as difficult to calculate as trademark infringement, but the provisions of patents are more computable than those of trademarks. It is obviously easier to calculate the number of sales of the infringer multiplied by the reasonable profit of each patented product of the patentee, and it also greatly reduces the difficulty of proof of the patentee. We only need to find the sales quantity of the infringer, instead of finding the basis for calculating the profit of a single infringing product like a trademark, which also excludes the situation that the sales quantity of the infringer has not decreased and the loss cannot be calculated.
Article 21 of the High Court stipulates: "If it is difficult to determine the infringer's loss or the infringer's gain, and there is a patent license fee as a reference, the people's court may reasonably determine the compensation amount according to the category of the patent right, the nature and circumstances of the infringer's infringement, the amount of the patent license fee, the nature, scope and time of the patent license, and with reference to/kloc-0 to 3 times of the patent license fee."
According to the relevant provisions of trademarks, the license fee is included in the statutory compensation, but in practice, the court will also calculate it as a separate calculation method. 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 compensate less than three times. For example, the patent infringement compensation in the United States can be fined three times. In China, intellectual property infringement generally adopts the principle of compensation, that is, there is no punitive compensation for any loss. Only in copyright infringement compensation, the amount of compensation 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.
The above knowledge is Bian Xiao's answer to the question "Standards and calculation methods of patent infringement compensation". There are different standards for patent infringement compensation, including taking actual loss as the standard and taking all profits obtained from creditor's rights as the standard. If the reader needs to consult a lawyer about legal issues,