The patent right enjoyed was legal and valid, and the defendant committed an infringement, which led to the occurrence of damage consequences.
1. Evidence that the plaintiff enjoys the legal and valid patent right.
According to the identity of the plaintiff, it can be divided into five types: patentee litigation, patentee's legal heir litigation, exclusive licensee litigation, exclusive licensee litigation, general licensee litigation and 1 special patent litigation involving new products.
1. Where the patentee files a lawsuit, it shall submit documents to prove the authenticity and validity of its patent, including patent certificate, patent claim, specification and recent patent annual fee payment certificate. Involving the infringement lawsuit of utility model patent, it shall also submit the retrieval report of utility model patent issued by China National Intellectual Property Administration. The scope of protection of the patent right shall be subject to the patent claim, and the contents of the specification and drawings are only used to explain the contents of the patent right, but not to introduce the patent right.
2. Where the legal heir of the patentee files a lawsuit, in addition to the above-mentioned materials in item 1, it is also necessary to submit relevant certificates of inheritance.
3. Where an exclusive licensee files a lawsuit, it shall submit an exclusive license contract in addition to the materials mentioned in the above item 1.
4. If the licensee of an exclusive license files a lawsuit, in addition to the above-mentioned 1 materials, it is also necessary to submit the exclusive license contract and the proof that the patentee has given up the lawsuit.
5. Where a general license licensee files a lawsuit, in addition to the materials mentioned in item 1 above, it is also required to submit the general license contract and the certification materials that the patentee explicitly authorizes the licensee to file a lawsuit.
6. In patent litigation involving the manufacturing method of new products, although the patent law stipulates that the defendant "provides proof that the manufacturing method of this product is different from the patented method", it does not mean that the plaintiff has no burden of proof. The burden of proof for the plaintiff is (1) to prove that the plaintiff has a valid invention patent for a product manufacturing method; (2) The result of the patent application for this method is to produce a new product; (3) The defendant made the same product as its new product.
Second, the defendant committed patent infringement.
The plaintiff shall provide the following evidence as far as possible to prove that the defendant has committed or will commit patent infringement:
1. The alleged infringing products produced by the infringer are the most direct evidence;
2. If it is really impossible to collect the alleged infringing products due to objective reasons, indirect evidence such as advertisements, leaflets and sales contracts signed with others published by the infringer in newspapers and periodicals can be provided first;
3. Sellers and users accused of infringing products sell or use products that they know are infringing products;
4. Compare the accused infringing product with the patent claim of the obligee, explain how its technical features fall into the protection scope of the obligee's patent, and prove that the infringement is established.
Third, the infringement has led to the occurrence of damage consequences.
Article 65 of the Patent Law (2008) stipulates that the amount of compensation for patent infringement shall be determined according to the actual losses suffered by the obligee due to infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement. If it is difficult to determine the loss of the obligee or the interests of the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee. The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement.
If it is difficult to determine the loss of the obligee, the benefits 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, the nature and circumstances of the infringement.
To sum up, it can be summarized as four aspects:
1, actual loss of creditors
The loss suffered by the obligee due to infringement = the product of the total sales volume reduced by the patentee's patented products × the reasonable profit income of each patented product.
If it is difficult to determine the total number of sales reduced by the obligee, it is the product of the total number of infringing products sold in the market × the reasonable profit of each patented product.
2, the infringer's illegal income
The benefits obtained by the infringer due to infringement = the product of the total number of infringing products in the market × 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.
3. Statutory compensation
If it is difficult to determine the loss of the obligee or the benefit of the infringer, and there is a patent license fee for reference, the court may reasonably determine the compensation amount by referring to 1 to 3 times of the patent license fee according to the type of patent right, the nature and circumstances of the infringer's infringement, the amount of patent license fee, the nature, scope and time of patent license, etc. If there is no reference to the patent license fee or the patent license fee is obviously unreasonable, the court will generally determine the compensation amount of 5,000 yuan to 300,000 yuan according to the type of patent right, the nature and circumstances of infringement, and the maximum amount will not exceed 500,000 yuan. The new patent law, which came into effect on June 65438+1 October 1 day, 2008, determined the legal compensation amount as 1 ten thousand yuan and1ten thousand yuan.
4. Reasonable expenses
The "reasonable expenses" paid to stop the infringement generally include:
Lawyer's fees: In practice, lawyer's fees are not fully compensated. In general, the lawyer's fee paid is determined according to the ratio of the amount of compensation determined by the judgment to the amount of litigation request. If the judgment does not bear the liability for damages, but it is ordered to stop the civil liability such as infringement and apology, the general compensation is not higher than that of lawyer1/3;
Notarial fees and other investigation and evidence collection fees: these can only be supported if the infringement is basically established and notarial certificates are used as evidence, and they can generally be fully supported;
Transportation and accommodation;
Printing fees for litigation materials;
Other reasonable expenses paid by the obligee for stopping the infringement or lawsuit.