First, what is patent infringement?
Patent infringement is divided into direct infringement and indirect infringement.
1. Direct infringement is the behavior that the actor directly infringes the patent right of others.
Direct infringement is embodied in the following aspects: the act of manufacturing patented products of inventions, utility models and designs; The act of using patented products of inventions and utility models; The act of promising to sell patented products of inventions and utility models; The act of selling patented products of inventions, utility models or designs; The act of importing patented products of inventions, utility models and designs; Use patented methods and use, promise to sell, sell or import products directly obtained according to patented methods; The act of counterfeiting another person's patent.
It should be noted that, for the purpose of production and operation, using or selling a product that is known to be patented or directly obtained according to the patented method, which can prove the legal source of the product, is still an act of patent infringement, and it is necessary to stop the infringement without being liable for compensation.
2. Indirect infringement means that the behavior of the actor itself does not constitute direct infringement of others' patents, but abets, helps and induces others to implement patents and leads to direct infringement. Subjectively, the actor intentionally induced or instigated others to infringe the patent right, which objectively provided the necessary conditions for the occurrence of direct infringement.
There are three conditions that constitute indirect infringement of patent right: first, there must be the fact of direct infringement; The second is to provide the necessary conditions for the direct infringer to implement the patent; Third, the actor must know or should know subjectively that he has provided conditions for others to carry out patent infringement.
Indirect infringement generally refers to the provision, sale or import of main or core raw materials and parts specially used for manufacturing patented products, or main or core materials, devices and equipment specially used for patented methods by patent indirect infringers.
Second, how to calculate the profits of the infringer?
Generally speaking, the calculation standard is: the sales volume of infringing products x 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; For the infringer who is completely engaged in infringement, in order to reflect the punishment for his intentional infringement, it can be calculated according to the profit of product sales.
Third, the compensation standard of patent infringement.
1. Compensation according to actual losses: determined according to the actual losses suffered by the obligee due to infringement or the interests gained by the infringer due to infringement.
2. Statutory compensation: if the loss of the obligee or the benefit of the infringer is difficult to determine, it shall be reasonably determined by reference to the multiple of the patent license fee; If it is difficult to determine the loss of the obligee, the benefits obtained by the infringer and the patent license fee, the court may determine compensation of more than 30,000 yuan and less than 5 million yuan according to the type, nature and circumstances of the patent right.
3. Punitive damages: If the patent right is intentionally infringed, if the circumstances are serious, the amount of compensation can be determined in accordance with the above method, which is more than one time but less than five times.
In addition, the amount of compensation should include the reasonable expenses for stopping the infringement pointed out by the obligee.
Legal objectivity:
Patent infringement refers to the behavior of the actor who, without the permission of the patentee and without legal basis, exploits another person's patent for the purpose of making profits within the validity period of the patent, which violates the provisions of Articles 1 1 and Article 58 of the Patent Law. It belongs to patent infringement and should bear the responsibility for patent infringement. If the use or sale of a patented product that is not known to be manufactured or sold without the permission of the patentee or a product directly obtained by a patented method is used for production and business purposes, it shall not be liable for compensation if it can prove the legal source of the product. If a patent is exploited without the permission of the patentee, that is, the patent right is infringed and a dispute arises, it shall be settled by the parties through consultation; Unwilling to negotiate or failing to do so, the patentee or interested party may bring a suit in a people's court or request the administrative department for patent affairs to handle it. When the administrative department for patent affairs finds that the infringement is established, it may order the infringer to stop the infringement immediately. If a party refuses to accept the decision, he may bring a lawsuit to the people's court in accordance with the Administrative Procedure Law of the People's Republic of China within 15 days from the date of receiving the notice of handling. If the infringer fails to prosecute and stop the infringement upon expiration of the time limit, the administrative department for patent affairs may apply to the people's court for compulsory execution. At the request of the parties concerned, the administrative department for patent affairs may mediate the amount of compensation for patent infringement; If mediation fails, the parties may bring a lawsuit to the people's court in accordance with the Civil Procedure Law of People's Republic of China (PRC). Where a patent infringement dispute involves an invention patent of a new product manufacturing method, the unit or individual that manufactures the same product shall provide proof that its product manufacturing method is different from the patented method; Where a patent for utility model is involved, the people's court or the administrative department for patent affairs may require the patentee to issue a search report made by the patent administrative department of the State Council.