Patent infringement refers to the act of exploiting another person's patent for profit without the permission of the patentee and legal basis within the validity period of the patent right. The following are some thinking papers about patent infringement compensation that I collected for you, hoping to help you.
Based on the theory of how to determine the amount of patent infringement compensation, this paper analyzes the problems existing in the calculation method of patent infringement compensation in China, and then puts forward some exploratory suggestions to provide reference for perfecting the determination of patent infringement compensation in China.
Keywords: compensation for patent infringement damages to the patentee
I. Overview of compensation for patent infringement damages
(A) the concept and characteristics of patent infringement
Patent infringement refers to the act of exploiting another person's patent for profit without the permission of the patentee and legal basis within the validity period of the patent right. It mainly has the following four characteristics: 1. The object of infringement is a valid patent; 2. There must be infringement, that is, the actor objectively infringes the patent of others; 3. For the purpose of production and operation; It violates the law, that is, there is no legal basis for the actor to exploit the patent without the permission of the patentee.
(B) the meaning of patent infringement damages
What is the general concept of damage compensation in theory in China? If the property or personal injury of the victim is caused by the infringement, the infringer shall bear the civil liability for compensation for the damage of the victim in cash or in kind according to law. It can also be said that the claim for damages is a legal system, that is, the sum of compensation principles, compensation scope and compensation methods recognized by tort law. ? This meaning reveals the compensation function of damages and the form of property liability.
Second, the calculation method and existing problems of patent infringement damages in China.
(1) Provisions on the basis and calculation method of patent infringement damages in China's current patent law and related judicial interpretations.
Article 65 of China's Patent Law stipulates that the amount of compensation for infringement of patent rights 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. ?
According to "Answers to Several Questions on Trial of Patent Dispute Cases" issued by the Supreme People's Court, (1) the actual economic losses suffered by the patentee due to infringement shall be regarded as the amount of compensation for losses. The calculation method is: because the infringing products of the infringer (including products produced by other people's patented methods) are sold in the market, the sales volume of the patented products of the patentee is reduced, and the product of the total sales volume reduction multiplied by the profit income of each patented product is the actual economic loss of the patentee. (2) Take all the profits obtained by the infringer due to infringement as the amount of damages. The calculation method is: the product of the profit obtained by the infringer from each infringing product (including products produced by others' patented methods) multiplied by the total amount sold in the market is the total profit obtained by the infringer. (3) Take a reasonable amount not less than the patent license fee as compensation for losses. For the above three calculation methods, the people's court may choose to apply them according to the different circumstances of the case.
(2) Problems in the calculation method of patent infringement damages in China in practice.
1. Determine the compensation amount according to the actual losses suffered by the obligee due to infringement and the problems existing in practice.
According to the law, the loss of the patentee is calculated by multiplying the total sales reduction caused by the infringing product of the infringer by the reasonable profit of each patented product. This calculation method is generally applicable to patented products that have been put into the market, and the appearance of infringing products forces the sales of patented products to decline, which leads to the decrease of the patentee's interests, and the patentee can provide evidence to prove that the decrease of interests is caused by infringement. However, in practice, there are many reasons for the decline in sales of patented products. For example, the management of the enterprise, the defects of the obligee's product itself, the accuracy of product positioning, the competition of competitors and so on. If only because of the existence of infringement, it is obviously unfair to the infringer, and it is not conducive to the patentee to improve technology and improve efficiency from his own point of view. In addition, if the actual sales volume of the patentee has not decreased, it should be increased rather than increased, which is also the actual loss that the obligee can expect. However, there is no provision for this situation in China's laws, and this issue is rarely mentioned in relevant judicial decisions.
2. Determine the amount of compensation according to the interests obtained by the infringer due to infringement and the problems existing in practice.
According to the Supreme People's Court's judicial interpretation, the benefits obtained by infringers can be calculated by multiplying the total sales of infringing products in the market by the product of reasonable profits of each infringing product. The profit of the infringer is generally calculated according to the operating profit of the infringer, and it can be calculated according to the sales profit for the infringer who is completely engaged in infringement. In the accounting system, profit can be divided into sales profit, operating profit and net profit. Generally speaking, sales profit is greater than operating profit, and operating profit is greater than net profit. What kind of profit is used to calculate the amount of damages is different in practice. During the trial of a case, it is usually necessary to review and audit the defendant's financial books to determine the sales amount and operating profit of the infringing products.
However, there is no single cost of infringing products in the financial books, so it is obviously unfair to award all the profits from product sales to the infringed. In addition, the infringer may gain benefits by saving R&D costs, that is, it may not be directly manifested as profits on products. Therefore, in order to better protect the interests of the patentee, both should be regarded as part of the compensation. On this issue, China's judicial interpretation does not conform to the provisions of the patent law. In addition, if the financial account book provided by the patent infringer shows that the infringing product is not profitable, does it mean that the infringer can be exempted from liability for compensation and the obligee can't get compensation? The author thinks that the principle of compensation for damages currently stipulated in Chinese law is the principle of filling in the flat, and the infringer's liability for compensation mainly lies in the economic losses caused by the infringer, not in whether the infringer makes a profit.
3. Determine the compensation amount according to the multiple of the patent license fee and the problems existing in practice.
Patent license fee refers to the fee charged by the patentee to license others to use his patent. Article 65 of the Patent Law only stipulates that if the infringer's loss or the infringer's profit is difficult to determine, the compensation amount can be determined by referring to the multiple of the license fee, but there is no specific provision on the multiple. The Supreme People's Court explained in Article 21 of the Provisions on the Application of Patent Dispute Cases that the range of multiple is 1 to 3 times, which is determined by the people's court according to the circumstances of the infringement, the type, size, nature, scope of application and time of the patent. However, the regulations on these related factors are very vague. What is patent licensing? Exclusive permission? 、? General permission? 、? Exclusive permission? By analogy, different license fees are different and vary greatly. In addition, this method is even more unfavorable to the patentee, because if the infringement is not discovered, the infringer can profit from it, and if it has been discovered, it only needs to pay a reasonable royalty, and the infringement risk is zero.
4. Legal compensation and its problems in practice.
Statutory compensation refers to the method of determining the amount of compensation in a certain range according to some factors related to infringement when the loss of the obligee and the income of the infringer are uncertain. China's patent law has raised the legal compensation ceiling from 500,000 yuan stipulated in the original judicial interpretation to1000,000 yuan, mainly considering that the improvement of China's scientific and technological level has prompted more and more inventions with high economic value to appear, and the cost of research and development and the cost of safeguarding rights are gradually increasing. Only by appropriately raising the statutory compensation ceiling can the legitimate rights and interests of patentees be effectively protected.
However, the patent law does not specify the reference factors of statutory compensation in detail, which gives judges greater discretion to some extent. It is easy to appear that the compensation for patent infringement damages depends not on the objective facts and basis of the case, but on the judge's overall impression of the case. In practice, this all-out compensation method easily leads to the abuse of statutory compensation by the court, which is also a misunderstanding of the legal provisions. In addition, as to whether the statutory compensation includes the reasonable expenses of the obligee, the author thinks that the answer is no, the purpose of the reasonable expenses of the obligee is to remedy or reduce the damage, and the damage compensation is a kind of compensation for the damage caused by the infringement, and the purposes of the two are different.
Third, improve the calculation method of patent infringement damages in China.
(A) the improvement of the calculation method of profit loss in China
China's patent law takes the actual loss suffered by the patentee due to infringement as the calculation method of compensation, and the actual loss here is mainly the loss of profit. China's patent law and judicial interpretation should stipulate the specific calculation method of profit loss, and divide the patentee's products into patented products and incomplete patented products. If the product includes both the part covered by the patent right and the part not covered by the patent right, only the part covered by the patented product will be counted. However, unless the patented part plays a major role in the product, the loss of the non-patented part should also be calculated within the scope of profit loss. In addition, in order to further protect the rights of the patentee and determine the economic losses of the patentee as accurately as possible, an asset evaluation mechanism can be introduced into judicial practice. When it is difficult to calculate the specific losses and infringement profits of the patentee, it may entrust an intangible assets evaluation institution to evaluate the value of the patent right.
(2) The improvement of the compensation calculation method based on the interests obtained by the infringed party due to infringement.
China's patent law applies the principle of reciprocity of profit and loss to damages. That is, the amount of compensation claimed is neither more than nor less than the creditor's loss. Therefore, when calculating the profit loss of the obligee, we should focus on the causal relationship between the interests of the infringer and the profit loss of the obligee.
First, if the infringer has evidence to prove that the benefits he has obtained are not entirely generated by infringing products, but created by market-competitive alternative non-infringing products, then this part of the benefits cannot be compensated to the obligee.
Second, when examining the benefits obtained by the infringer, we should also consider the production and sales ability of the obligee himself, and the part exceeding this amount should not be compensated. In other words, the benefits obtained by the infringer are calculated by subtracting the benefits brought by non-infringing products.
(C) the improvement of China's license fee calculation method
China's laws have not made specific provisions on the standard of patent license fees. What is patent licensing? Exclusive permission? 、? General permission? 、? Exclusive permission? By analogy, different license fees are different and vary greatly. The patent license fee includes both the patent license fee for similar products and the industry standard license fee, as well as the patent license fee obtained by the patentee himself. Therefore, in the specific use, we can refer to the practice of the United States, that is, list the elements of the judge's ruling on patent license fees one by one: for example, increasing the nature of patent license refers to whether patent license is exclusive or general, so as to further explain its definition and make the specific reference elements concrete.
(D) Improve the calculation method of legal compensation in China.
China's legal and judicial interpretation should determine the amount of compensation by listing or dividing the scope of various specific situations of legal compensation reference factors to prevent judges from abusing their discretion. In addition, in our country, the reasonable expenses of the obligee should be excluded from the statutory compensation. The reasonable expenditure of the obligee is different from the compensation for damages. The former is paid to reduce the damage or carry out relief, while the latter is mainly a kind of compensation for the damage caused, which should have a certain causal relationship with the tort itself.
refer to
[1] Editorial Committee of the National Judicial Examination Guidance Book. National Judicial Examination Counseling Book (Volume III). Law press. 248 (2006).
[2] Wei Zhenying editor. Civil law. Renmin University Press, Higher Education Press. 2000 edition. Page 722.
[3] Chapter V, Chapter VI and Chapter VII of the Accounting System for Enterprises (200 1 Edition) formulated by the Ministry of Finance.
[4] Zhang. Civil remedies for intellectual property infringement. Law press. 2003 edition. Page 190.
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