1, statutory compensation
Article 21 of the Supreme People's Court's Provisions on the Application of Laws in the Trial of Patent Disputes: "If there is no patent license fee to refer to 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 by the infringer and other factors, generally ranging from RMB 5,000 to RMB 300,000, and the maximum amount shall not exceed RMB 500,000."
2, according to the interests of the infringer due to infringement.
Paragraph 3 of Article 20 of the Supreme People's Court's Provisions on the Applicable Law in the Trial of Patent Disputes: "The benefits obtained by the infringer due to infringement can be calculated by multiplying the total number of infringing products sold in the market 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. "
It should be noted here that if the infringer takes infringement as his occupation, it shall be calculated according to the sales profit. The sales profit is greater than the operating profit, which provides convenience for the infringer to calculate.
3. Calculated according to the losses suffered by the infringed party due to infringement.
Paragraph 2 of Article 20 of the Supreme People's Court's Provisions on the Applicable Law in the Trial of Patent Disputes: "The loss suffered by the obligee due to infringement can be calculated by multiplying the total sales volume of patented products obtained by the patentee due to 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. "
This provision greatly reduces the difficulty of proof for the patentee, as long as the sales volume of the infringer is determined, and it also excludes the situation that the sales volume of the infringer has not decreased and the loss cannot be calculated.
4. Determine the compensation amount according to the multiple of the patent license fee.
Article 21 of the Supreme People's Court's Provisions on the Applicable Law in the Trial of Patent Disputes: "If it is difficult to determine the losses of the infringed or the benefits obtained by the infringer, and the patent license fee is referenced, the people's court may reasonably determine the amount of compensation, 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 fee according to the category of the patent."
Finally, it should be noted that the first three calculation methods can be chosen by the patentee, which is most beneficial to him. Only when the first three calculation methods are not applicable can the fourth calculation method be adopted.
To sum up, patent infringement belongs to the use of the infringer without the consent of the patentee. This kind of behavior is bound to bear legal responsibility, and the amount of compensation will generally be paid reasonably in combination with the actual amount. In addition, the infringer may be required to stop compensation and apologize.