Judicial Interpretation by the Supreme People’s Court for the Applicable Laws of the Trial of Patent Infringement Dispute Cases Solicit Public Comments (2014-07)

Recently, the Supreme People’s Court solicit public comments on “Decisions on Revising Several Provisions of the Supreme People’s Court on Issues Concerning the Application of Law in the Trial of Patent Infringement Dispute Cases”, the relative reports are as follows:
 
On July 17, the Supreme People’s Court announced the draft that “Decisions on Revising Several Provisions of the Supreme People’s Court on Issues Concerning the Application of Law in the Trial of Patent Infringement Dispute Cases” (hereinafter referred to as “the Draft”) for public comments.
 
The Draft specifically refines how to calculate the actual loss suffered by the patentee when infringement occurs. It is specifically prescribed that the actual loss could be calculated by the total number of decrease in sales due to the infringement multiplies by the reasonable profit of each patented product. If the total number of decrease in sales is difficult to be determined, the actual loss suffered by the patentee could be regarded such as that the gross sales of the infringed products multiplies by the reasonable profit of each patented product. Benefits obtained by the infringer are generally calculated by the infringer’s operating profit, while for the infringers whose businessesare solely based on infringements, their benefits can be calculated in accordance with sales profits.
　
If either the loss of the patentee or the benefits gained by the infringers can still be difficult to be determined, the situations in which there are or not patent licensing fees to be referred to are respectively specified in the Draft. In the meantime, it is  also provided that the reasonable expenses claimed by the patentee in order to be paid for the cessation of infringement can be calculated separately except the compensation amounts provided in the Patent Law.
 
It is proposed in the Draft that whoever counterfeits the patent of anyone else shall be subject to his civil liabilities according to the provisions of the Patent Law, if the administrative punishments are not announced by the patent administrative department, the court can impose civil sanction according to the provisions of General Principles of the Civil Law, and the applicable amounts of the civil penalty can be determined by referring to the Patent Law.
 
Meanwhile, the Draft specifically defines the places of patent infringements including: the places where the infringers implement manufacturing, using, offering for sale, selling and importing the products which infringe inventions or utility model patents; the places where the infringers implement infringed patent methods, and the places where the infringers implement using, offering for sale, selling and importing the products which are gotten directly according to the infringed patent methods; the places where the infringers implement manufacturing, offering for sale, selling and importing the products which infringe industrial design patents; the places where the infringers implement counterfeiting the patent of anyone else; and the places where infringement results caused by all above infringements occur. (Translated by Fan Rong, Revised By Shan Yuqiu)