Can I apply for a patent if I use some raw materials to replace the existing products?

1. What are the compensation methods for patent infringement? 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 calculable 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. Two. Calculation method of patent infringement compensation Article 60 is a new clause in this revision, which stipulates three calculation methods for the amount of infringement damages at two levels: first, it is calculated according to the loss of the obligee or the profit of the infringer; If these two items are difficult to determine, the compensation amount shall be reasonably determined by referring to the multiple of the patent license fee. This article is basically consistent with the compensation calculation method often used in patent trial practice, and adds a provision referring to the multiple of patent license fee, but does not stipulate the fixed compensation method often used in practice. Therefore, it is stipulated that Articles 20 to 22 should be based on the principle of full compensation, and combined with Article 60 of the Patent Law, the relevant provisions of the Supreme People's Court 1992 Answer and the relevant contents of Wuxian Meeting Minutes, they made more specific provisions on compensation. First of all, Article 20 of this regulation stipulates that the people's court may, at the request of the obligee, calculate the amount of compensation according to the loss of the obligee or the profit of the infringer. It is inappropriate for the people's court to determine the amount of compensation by itself. The loss of the obligee can generally be calculated by multiplying the reduced sales volume of patented products by the 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 profit of each patented product can be regarded as the loss suffered by the right holder due to infringement. Therefore, this provision is made because it is often difficult for plaintiffs to prove that the sales of their patented products are reduced because of the defendant's infringement. Although it is relatively easy to prove the sales volume of infringing products, the sales price of infringing products is far lower than the normal price of patented products. If the defendant's profit is determined as compensation, it cannot make up for the actual loss of the obligee. In fact, this alternative method of calculating the amount of compensation has long been adopted by many courts in trial practice. The results of judicial practice show that it conforms to the actual situation of most cases, which not only effectively protects the legitimate rights and interests of the plaintiff, but also is fair to the defendant. The profit of the infringer is generally determined by multiplying the sales volume of the infringing product by the profit of each infringing product. The benefits obtained by the infringer due to infringement are generally calculated according to the infringer's business profit, and for the infringer who is completely engaged in infringement, it can be calculated according to the product sales profit. Considering that financial expenses and management expenses generally account for a considerable proportion of enterprise expenses, and in general, these expenses are indeed the actual expenses of the defendant, they should be deducted from the profits obtained by the defendant from the infringement, that is, calculated according to the operating profit. In many cases, the defendant has products other than infringing products, but the expenses reflected in his financial books are the total expenses of the enterprise, which requires the court to divide the expenses that should be reasonably allocated to infringing products according to the actual situation, and sometimes it needs to entrust the audit department to audit. On the one hand, the defendant who is completely engaged in infringement is generally irregular in financial books, and on the other hand, in order to reflect the punishment for intentional infringement, the compensation amount can be calculated according to the product sales profit. In addition, when determining the amount of compensation with the defendant's profit, we should also pay attention to the role or position of the plaintiff's patent in the infringing product. The plaintiff's patent is only implemented on a small part of the infringing products. For example, if the plaintiff's patent is only used on a certain part of the defendant's product packaging, it is not appropriate to determine the total profit of the defendant's sale of the product as the amount of infringement compensation. Secondly, Article 21 of this regulation explains the "multiple" of the patent license fee in Article 60 of the Patent Law, and clearly stipulates the application of fixed remuneration. This article stipulates that in the case that the above two calculation methods are difficult to determine, if there is a patent license fee to refer to, the people's court may determine the compensation amount by referring to 1 to 3 times of the patent license fee according to the type of the infringer, the nature and circumstances of the infringement, the amount of the patent license fee and the nature, scope and time of the patent license. Among them, "patent license for reference" means that the plaintiff can provide evidence of similar patent license fees in the same industry or technical field, which is not necessarily the license fee in the patent license contract signed by the plaintiff with others before litigation. On the issue of multiple, some people think that the license fee is generally 50-60% of the normal profit. According to the principle of civil compensation, the license fee of 1 times is not enough to compensate the loss of the obligee, and it is more reasonable to determine the actual loss of the obligee with 1.5-2 times. As the patent law has just been implemented, this issue needs to be further explored and summarized in judicial practice. Article 21 also stipulates that if there is no patent license fee for reference or the patent license fee is obviously unreasonable, the people's court may, according to the type of patent right, the nature and circumstances of the infringement by the infringer and other factors, generally determine the amount of compensation from 5,000 yuan to 300,000 yuan, with the maximum amount not exceeding 500,000 yuan. According to this provision, when the plaintiff fails to provide relevant evidence of patent license fee, or the license fee provided by the plaintiff is obviously not comparable to the patent involved, the provision of fixed compensation can be applied. It should be emphasized that only when the compensation amount cannot be determined by the above three methods can the fixed compensation method be considered. When the defendant's infringement facts are clear, but the plaintiff can't prove his actual loss or the defendant's infringement profit, and can't provide the reference license fee, the defendant is ordered to pay some economic compensation to the plaintiff. This is a compensation method based on the characteristics of intellectual property infringement and the "predetermined compensation amount" in TRIPS agreement or the "legal compensation amount" in some countries. In the Supreme People's Court, in order to facilitate the local courts to grasp the applicable standards, the range is determined to be RMB 5,000 to RMB 500,000 according to years of trial practice experience. In addition, in order to implement the principle of comprehensive compensation for intellectual property infringement damage, Article 22 stipulates that the people's court may, according to the request of the obligee and the specific case, calculate the reasonable expenses paid by the obligee for investigating and stopping the infringement within the amount of compensation. There are two points to note. First, the premise of the calculation of expenses such as investigation within the scope of compensation is that the obligee makes a request and the court thinks it can support it according to the specific circumstances of the case; Second, the reasonable expenses for investigating and stopping the infringement do not include the lawyer's fees during the litigation. The provision on damages in TRIPS Agreement is that "appropriate attorney's fees may be included", which gives member countries more leeway to make their own decisions according to their own conditions.