Compensations for infringement have seen major changes in four aspects: calculation of the compensation, punitive compensation, statutory compensation and burden of proof.
Calculation
Calculation based on the actual loss of the patentee caused by the infringement and that based on the profits the infringer has earned because of the infringement are now equally preferred for compensation quantification. Where these two ways of calculation are difficult to apply, the compensation shall be reasonably determined with reference to the multiple of the exploitation fee of that patent under a license.
Punitive Compensation
For serious intentional infringement, punitive compensation is introduced: the amount of compensation ranges from one to five times the amount of losses suffered by patent holders, profits earned by infringers or the multiple of the exploitation fee. The introduction of punitive compensation means serious intentional infringement will be imposed a tougher penalty.
Statutory compensation
Statutory compensation will still be issued as compensation where preferred calculations are not viable for lack of evidence. The minimum limit of statuary compensation increases from RMB 10,000 to RMB 30,000 (approx. USD 4,500) and the maximum limit from RMB 1 million to RMB 5 million (approx. USD 760,000).
Burden of proof
Another modification is spoliation of evidence on the infringer's side being taken into consideration. In patent infringement, generally the right holder shall bear the burden of proof and shall endeavor to present evidence. On such a basis, the revised Law provides that where accounts and materials in relation to the infringing act are mainly in control of the infringer, the court may order the infringer to provide the accounts and materials; where the infringer does not provide the evidence or provide false accounts and materials, the court may quantify the compensation amount considering the right holder's claim and evidence provided. Therefore, the burden of proof on the plaintiff is to some extent alleviated.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.