What is the calculation method of patent infringement compensation?
1, loss of obligee
According to Article 65 of the Patent Law and Article 20 1 of French Interpretation [2015] No.4, the loss of the obligee 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 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. Expressed by the following formula:
Loss of obligee = decrease in sales of patented products (or decrease in sales of infringing products) * reasonable profit of patented products.
2, the infringer profit
According to Article 65 of the Patent Law and Paragraph 2 of Article 20 of French Interpretation [20 15] No.4, it can be calculated by multiplying the total number of infringing products sold in the market by the product of 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. Expressed by the following formula:
Infringer's profit = sales volume of infringing products * reasonable profit of infringing products (operating profit or sales profit)
Among them, sales profit = sales revenue-sales cost-sales expenses-tax surcharge, and operating profit = sales profit-management expenses-financial expenses.
3, a reasonable multiple of the license fee
According to Article 65 of the Patent Law and Paragraph 2 of Article 20 of French Interpretation [2015] No.4, it is difficult to determine the loss of the obligee or the interests of the infringer, and if there is a patent license fee to refer to, the people's court may reasonably determine the compensation amount according to the type of patent right, the nature and circumstances of infringement, the nature, scope and time of patent license, etc., with reference 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.
4. Statutory compensation
Paragraph 2 of Article 65 of the Patent Law stipulates that if it is difficult to determine the loss of the obligee, the benefit 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 and the nature and circumstances of the infringement.
5. Agreed compensation
Article 28 of SJ [20 16]No. 1 stipulates that if the obligee and the infringer agree on the amount of compensation or the calculation method of compensation according to law, the people's court shall support them in patent infringement litigation.
According to Article 65 of the Patent Law, the above calculation methods have a so-called legal order from 1 to 4, that is, the second calculation method can only be applied if the former calculation method is difficult to determine, and so on. According to Professor Yin Xtian's explanation, this amendment is made because according to the general principle of civil tort, the actual loss suffered by the obligee should be used as the basis for determining the amount of compensation, and only when the actual loss is difficult to determine, it needs to be determined according to the interests obtained by the infringer due to infringement.
The legal order of compensation calculation method seems to be understood as the restriction of obligee and the protection of infringer's interests. However, as long as the obligee refuses to submit evidence to prove the reasonable profit of the patented product, it is enough to make the loss of the obligee difficult to determine, and then claim the right according to the second calculation method, which actually makes the legal order regulation have no operational value.
If you encounter difficulties in seeking compensation for patent infringement, you should ask a lawyer for guidance in time.