How to determine the amount of damages for patent infringement

How to determine the amount of compensation for patent infringement? In patent infringement, the amount of damages is mainly determined according to the amount of property loss caused by the infringement. There are four main ways to calculate the amount of damages for patent infringement.

The following is detailed by the article in this article. How to determine the amount of compensation for patent infringement 1, according to the actual loss suffered by the right holder due to the infringement to determine the benefits obtained by the infringer due to the infringement = the total number of infringing products sold in the market * the reasonable profit of each infringing product 2, according to the benefits obtained by the infringer due to the infringement to determine the loss suffered by the right holder due to the infringement = the total number of sales reduction caused by the patentee due to the infringement * the reasonable profit of each patented product If it is difficult to determine the total number of sales reduction of the right holder: the loss suffered by the right holder due to the infringement =3. If it is difficult to determine the losses of the infringed party or the benefits obtained by the infringer according to the benefits obtained by the infringer due to the infringement, and there are patent royalties that can be referred to, the people's court may reasonably determine the amount of compensation with reference to the type of patent right, the nature and circumstances of the infringer's infringement, the amount of patent royalties, the nature, scope, and time of the patent license, and other factors.

4. If there is no patent royalty to refer to or the patent royalty is obviously unreasonable, the people's court may, on the basis of factors such as the type of patent right, the nature and circumstances of the infringer's infringement, generally determine the amount of compensation between RMB 5,000 and RMB 300,000, and the maximum amount shall not exceed RMB 500,000. The last calculation method can only be used if none of the first three calculation methods can be used.

Paragraphs 2 and 3 of Article 71 of the Patent Law stipulate that if it is difficult to determine the losses of the right holder, the benefits obtained by the infringer and the patent royalties, the people's court may determine the compensation of not less than RMB 30,000 but not more than RMB 5 million based on factors such as the type of patent right, the nature and circumstances of the infringement, etc.

2. Reasonably determine the amount of compensation with reference to 1 to 3 times of the patent license fee;

3. According to the type of patent right, the nature and circumstances of the infringer's infringement and other factors, the amount of compensation shall generally be determined between RMB 5,000 and RMB 300,000, and the maximum amount shall not exceed RMB 500,000.

Legal basis: Article 71 of the Patent Law of the People's Republic of China The amount of compensation for patent infringement shall be determined according to the actual losses suffered by the right holder as a result of the infringement or the benefits obtained by the infringer as a result of the infringement; If it is difficult to determine the loss of the right holder or the benefit obtained by the infringer, it shall be determined reasonably and accurately with reference to the multiple of the patent royalty. In the case of intentional infringement of patent rights, where the circumstances are serious, the amount of compensation may be determined between one and five times the amount determined in accordance with the above-mentioned methods.

Where it is difficult to determine the losses of the right holder, the benefits obtained by the infringer, and the patent license fees, the people's court may determine compensation of not less than RMB 30,000 but not more than RMB 5,000,000 based on factors such as the type of patent right, the nature and circumstances of the infringement, and other factors. The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringement. In order to determine the amount of compensation, the people's court may order the infringer to provide the account books and materials related to the infringement if the right holder has tried its best to provide evidence, and the account books and materials related to the infringement are mainly in the possession of the infringer; Where the infringer does not provide or provides false account books or materials, the people's court may determine the amount of compensation by referring to the rights holder's claims and the evidence provided.

If the sales volume of the patentee's patented products decreases due to the market sale of the infringing products (including products produced using the patented processes of others), the total number of sales decreases multiplied by the profits of each patented product shall be the actual economic losses of the patentee.

2) The amount of compensation for losses shall be the total profit obtained by the infringer as a result of the infringement. Calculation method: The product of the profit obtained by the infringer from each infringing product (including the product produced using the patented process of others) multiplied by the total number of products sold in the market is the total profit obtained by the infringer.

3) Compensation for damages in a reasonable amount less than the patent license fee.

Legal basis: Article 60 of the Patent Law of the People's Republic of China Infringement of the patentee's patent without the permission of the patentee; The patentee or interested party may request the patent administration authority to handle the matter, or may directly file a lawsuit with the people's court. When the patent administration authority handles the case, the patent administration has the right to order the infringer to stop the infringement and compensate for the losses; If the party concerned is not satisfied, he or she may file a lawsuit with the people's court within three months from the date of receipt of the notice, and if the party fails to file a lawsuit within the time limit and fails to perform, the patent administration authority may request the people's court to enforce the law.

Legal analysis: The amount of compensation for patent infringement shall be determined according to the actual losses suffered by the right holder due to the infringement; Where the actual losses are difficult to determine, they may be determined on the basis of the benefits obtained by the infringer as a result of the infringement. Where it is difficult to determine the loss of the right holder or the benefit obtained by the infringer, it shall be reasonably determined with reference to the multiple of the patent royalty.

Legal basis: Intellectual Property Law of the People's Republic of China

1) Publishing a work without the permission of the copyright owner;

2) Without the permission of the co-authors, publishing a work created in collaboration with others as a work created by oneself alone;

3) Signing the works of others without participating in the creation of works for the purpose of seeking personal fame and wealth;

4. Jujube Sakura) distorting or tampering with the works of others;

5) Without the permission of the copyright owner, the use of works by means such as performance, exhibition, distribution, filming, television, video recording, or adaptation, translation, annotation, etc., except as otherwise provided by this Law;

6) Using the works of others and failing to pay remuneration in accordance with provisions;

7) Without the performer's permission, live-streaming their performance;

Article 46: Where any of the following infringements are committed, civil liability such as stopping the infringement, eliminating the impact, publicly apologizing, and compensating for losses shall be borne on the basis of the circumstances, and administrative punishments such as confiscation of illegal gains and fines may be given by the administrative copyright management departments:

1) Plagiarizing or plagiarizing the works of others;

2) Without the permission of the copyright owner, reproducing and distributing their works for the purpose of making profits;

3) Publishing books for which others enjoy exclusive publishing rights;

4) Making audio or video recordings of performers' performances for publication without their permission;

5) Reproducing and distributing audio or video recordings produced by them without the permission of the producers of audio or video recordings;

6) Reproducing and distributing radio or television programs produced by radio or television stations without the permission of their radio or television stations;

7) Producing or counterfeiting works of art signed by others.