In recent years, patent infringement disputes have been one after another. In the patent infringement disputes between Ningde Times and Zhongchuang Xinhang, Zhongchuang Xinhang was awarded a total of compensation to Ningde Times in the first instance.3680Ten thousand yuan. Zhizhen Intelligent filed an infringement lawsuit with the court,Asks for Apple's claim amount100Billions of dollars.Oaks Air Conditioning Company Enforced by Local Court for Alleged Infringement of Gree Electric Appliances6056Ten thousand yuan. After the infringement is established, the patentee will claim compensation, so how is the amount of compensation for patent infringement determined?

1. legal basis

Article 71 of the Patent Law states:The amount of compensation for the infringement of the patent right shall be determined according to the actual loss suffered by the right holder as a result of the infringement or the benefit obtained by the infringer as a result of the infringement; if the loss of the right holder or the benefit obtained by the infringer is difficult to determine, it shall be reasonably determined by reference to the multiple of the patent license fee. For intentional infringement of patent rights, if the circumstances are serious, the amount of compensation may be determined to be between one and five times the amount determined in accordance with the above-mentioned methods.

If it is difficult to determine the losses of the obligee, the benefits obtained by the infringer and the royalties of the patent license, the people's court may determine to give compensation of not less than 30,000 yuan but not more than 5 million yuan according to the type of patent right, the nature and circumstances of the infringement and other factors.

The amount of compensation should also include the reasonable expenses paid by the right holder to stop the violation.

In order to determine the amount of compensation, the people's court may order the infringer to provide account books and materials related to the infringement when the obligee has tried his best to provide evidence and the account books and materials related to the infringement are mainly in the hands of the infringer; if the infringer does not provide or provides false account books and materials, the people's court may determine the amount of compensation with reference to the claims of the obligee and the evidence provided.

2. calculation method

1.Losses suffered by the right holder as a result of infringement

Several Provisions of the Supreme People's Court on the Application of Law in the Trial of Patent Dispute CasesArticle 14, paragraph 1, stipulates that the losses suffered by the obligee as a result of infringement as stipulated in Article 65 of the Patent Law may be based onThe product of the total reduction in sales of the patentee's patented products due to infringement multiplied by the reasonable profit per patented product.Calculations. Where it is difficult to determine the total decrease in the sales volume of the right holder,The product of the total number of infringing products sold in the market multiplied by the reasonable profit for each patented product.It can be regarded as the loss suffered by the right holder as a result of the infringement. .

2.Infringers benefit from infringement

Several Provisions of the Supreme People's Court on the Application of Law in the Trial of Patent Dispute CasesParagraph 2 of Article 14 stipulates that the benefits obtained by the infringer as stipulated in Article 65 of the Patent Law may be calculated according to the total number of infringing products sold on the market multiplied by the reasonable profit of each infringing product. The benefits obtained by the infringer as a result of the infringement are generally in accordance with the infringer'sOperating profitCalculation, for an infringer who is solely in the business of infringement, may followSales profitCalculations.

3.contribution degree of patent

In the case of patent infringement, the contribution of the patent should also be considered when calculating the infringement compensation based on the benefits obtained by the infringer.

4.A reasonable multiple of the patent license fee

Several Provisions of the Supreme People's Court on the Application of Law in the Trial of Patent Dispute CasesArticle 21 stipulates that if it is difficult to determine the losses of the infringed or the benefits obtained by the infringer, and there is a patent license fee that can be referred to, the people's court may, according to the category of the patent right, 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, refer to the patent license fee.1To3The amount of compensation shall be reasonably determined.

5.Statutory compensation

In judicial practice, often because the evidence provided by the patentee is insufficient or there is evidence but it is difficult to prove the specific amount of loss, the court can comprehensively consider the value of the right, the nature of the alleged infringement, the value and profit margin of the infringing product, the alleged infringer's business status, the alleged infringer's subjective malice, and the obligee's compensation in related cases.

6.Reasonable expenses

Reasonable expenses include: (1) Notary fees, certification fees; (2) Lawyer fees in accordance with the provisions of the judicial administrative department; (3) Investigation and evidence collection fee; (4) translation fee; (51) Other reasonable expenses paid to stop the infringement and eliminate the influence.

In the above-mentioned method of calculating the amount of tort compensation, the basis.Infringers benefit from infringementThe method of calculation will generally be preferred, in addition to the fact that the amount of compensation can be negotiated between the parties involved.