The Method Of Determining The Amount Of Compensation For Patent Infringement
In accordance with the provisions of paragraph 1 of article fifty-seventh of the patent law, the people's court may, according to the request of the obligee, determine the amount of compensation according to the loss suffered by the obligee due to the infringement or the interests of the infringer due to infringement.
The losses suffered by the obligee due to infringement can be calculated on the basis of the total number of sales reduction caused by the infringement of the patented product by the product of the reasonable profit of each patented product. The total number of sales reduced by the obligee is difficult to determine. The total number of sales of infringing products in the market multiplied by the reasonable profit of each patent product can be regarded as the loss suffered by the obligee due to infringement.
The interests gained by the infringer due to infringement can be calculated on the basis of the total number of products sold in the market multiplied by the reasonable profits of each infringing product. The interests gained by the infringer are generally calculated according to the business profits of the infringer, and the infringers who are wholly infringed on the property can be calculated according to the sales profits.
The amount of compensation for infringement of a patent shall be determined according to the loss suffered by the obligee because of the infringement or the interests gained by the infringer due to infringement. The loss of the infringed party or the benefit obtained by the infringer is difficult to determine.
The loss of the infringed party or the interests of the infringer can not be determined. If the patent license fee is available, the people's court may reasonably determine the amount of compensation according to the categories of the patent, the nature and circumstances of the infringer's infringement, the amount of the royalty, the nature of the license, the time and other factors, and the amount of the compensation according to the 1 to 3 times of the patent license fee. If no patent license fee can be used or the royalty rate is obviously unreasonable, the people's court can determine the amount of compensation under the category of the patent right, the nature of the infringement and the circumstances of the infringement, and so on, and generally determine the amount of compensation below RMB 5000 yuan and 300 thousand yuan, which shall not exceed RMB 500 thousand yuan.
According to the request of the obligee and the specific case, the people's court may calculate the reasonable expenses paid by the obligee due to investigation and stop the infringement.
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