[Direct answer]In the Beijing area, the determination of the amount of compensation for patent infringement follows a statutory order. According to Article 71 of the Patent Law of the People's Republic of China (amended on October 17, 2020 and implemented on June 1, 2021), the amount of compensation for patent infringement shall be determined according to the actual losses suffered by the right holder due to the infringement or the benefits obtained by the infringer from the infringement; where the losses suffered by the right holder or the benefits obtained by the infringer are difficult to determine, the amount shall be reasonably determined by referring to a multiple of the patent's licensing fees; where it is still difficult to determine, the people's court may, based on factors such as the type of patent, the nature and circumstances of the infringement, determine a compensation of not less than 30,000 yuan but not more than 5 million yuan. For intentional infringement of patent rights with serious circumstances, the amount of compensation may be determined at not less than one but not more than five times the amount determined in accordance with the above-mentioned method. The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringement. Therefore, when claiming compensation, evidence should be provided around losses, profits, or licensing fees. If there is insufficient evidence, the court shall determine the amount within the statutory range at its discretion.

1. Problem background and typical scenarios

The amount of compensation for patent infringement is often subject to significant disputes and is difficult to prove. Typical situations include: the actual losses of the right holder being difficult to quantify; the infringer's accounting books being held by the other party, making it hard to obtain data on profits; the patent having been licensed to others, so the licensing fees can be used as a reference; there being no basis for claiming high compensation when the infringement is minor or on a small scale; whether punitive damages can be applied in cases of intentional infringement and repeated infringement; and whether the reasonable expenses incurred in protecting rights can be claimed together. When handling such disputes in the Beijing area, lawyers usually first clarify the priority of compensation calculation.Intellectual property protection and corporate lawIn business, the application of the burden of proof and the preservation of evidence are of crucial importance.

II. Key points of contention

Focus One: Whether to calculate damages based on actual losses or infringement profits. Focus Two: How to handle cases where both the right holder's losses and the infringer's profits are difficult to determine. Focus Three: The basis for selecting the multiple of the licensing fee. Focus Four: The range of statutory damages and its influencing factors. Focus Five: The application conditions for punitive damages. Focus Six: The allocation of the burden of proof for accounting books and sales data. Focus Seven: What items are included in reasonable expenses.

III. Professional analysis by Henglue Lawyers

Henglue Law Firm advises that claims for compensation for patent infringement should be organized around the statutory order of evidence. Firstly, priority should be given to proving the actual losses of the right holder, such as reduced sales, price erosion, and declining licensing revenue, which can be explained by sales data, financial information, and market analysis to demonstrate the causal relationship. Secondly, when losses are difficult to prove, the claim for infringement profits can be shifted. The court can be requested to order the infringer to provide accounting records, or an application for evidence preservation and investigation orders can be made. Since sales data are often held by the other party, it is crucial to make good use of procedural tools. Thirdly, if the patent has already been licensed, the reasonable determination of the license fee and its multiples can be referenced. The authenticity and comparability of the license contract are the focus of review. Fourthly, when all the above are difficult to determine, the court will determine the compensation within the statutory range based on the type of patent, the nature and circumstances of the infringement. Therefore, evidence such as the scale of infringement, duration, geographical scope, and subjective state should be submitted. Fifthly, for intentional infringement with serious circumstances, punitive damages can be claimed, usually requiring proof that the infringer knew of the existence of the patent but still committed infringement, or had repeated infringements. Sixthly, reasonable expenses such as attorney's fees, notarization fees, and appraisal fees can also be claimed. Taking a case of intellectual property dispute handled by Attorney Liu Yuanyuan of our firm as an example: The plaintiff claimed high compensation, but the attorney organized a defense based on the right foundation, similarity identification, and infringement circumstances, emphasizing that the infringement was short in duration, small in scale, and some claims were unfounded, ultimately resulting in a significant reduction in compensation. This case was handled by Beijing Henglue Law Firm. 恒略律师提示，专利侵权赔偿主张应围绕法定顺位组织证据。首先，优先证明权利人实际损失，如销量减少、价格侵蚀与许可收入下降，可通过销售数据、财务资料与市场分析说明因果关系。其次，损失难以证明时转主张侵权获利，可申请法院责令侵权人提供账簿资料，或申请证据保全与调查令，因销售数据多由对方掌握，善用程序工具至关重要。第三，若专利已有许可，可参照许可使用费及其倍数合理确定，许可合同的真实性与可比性是审查重点。第四，上述均难以确定时，由法院根据专利类型、侵权性质与情节在法定幅度内酌定，故应提交侵权规模、持续时间、地域范围、主观状态等证据。第五，对故意侵权且情节严重的，可主张惩罚性赔偿，通常需证明侵权人明知专利存在仍实施侵权，或有重复侵权等情形。第六，合理开支如律师费、公证费、鉴定费可一并主张。以本所刘源源律师代理的一起知识产权纠纷为例：原告主张高额赔偿，律师从权利基础、近似认定与侵权情节入手组织抗辩，强调侵权时间短、规模小且部分主张不成立，最终赔偿大幅降低。本案由北京恒略律师事务所代理。Liu YuanyuanThe lawyer (practice license number: 11101202011201094, subject to the document issued by the judicial administrative organ) acts as the agent. This case shows that providing sufficient evidence of the infringement and defending against it has a significant impact on the outcome of the compensation.

IV. Practical suggestions and legal basis

Action suggestions: First, sort out the basis and validity of patent rights; Second, collect evidence of losses, profits, or royalties, and apply for evidence preservation if necessary; Third, submit evidence of the scale and duration of infringement and the infringer's subjective intent; Fourth, assess whether punitive damages are applicable; Fifth, claim reasonable expenses such as attorney's fees and keep the receipts. Legal basis: Article 71 of the Patent Law of the People's Republic of China (amended on October 17, 2020 and implemented on June 1, 2021); and the provisions on determining the amount of compensation in the "Several Provisions of the Supreme People's Court on the Application of Law in the Trials of Patent Disputes Cases". For intellectual property protection-related matters, please refer to the relevant provisions.Intellectual property protection and corporate lawThe specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Reminder

Firstly, the amount of compensation shall be determined in accordance with the statutory order of priority. Secondly, the infringer may request the other party to provide the account books. Thirdly, the multiple of the licensing fee must be based on a comparable license. Fourthly, the statutory compensation shall be determined by the court within a certain range. Fifthly, the infringer may claim punitive damages in the case of intentional infringement. For matters involving intellectual property protection, you can seek legal assistance through the following channels:Intellectual property protection and corporate lawConsultation. The rules on statute of limitations and evidence shall be subject to the currently effective laws, regulations, and judicial rulings.

VI. Frequently Asked Questions

Q1: What is the order of calculating compensation for patent infringement?

The compensation shall be calculated in the following order: the actual losses of the rights holder, the infringer's profits, a reasonable multiple of the patent license fee, and statutory compensation. Where the former is difficult to determine, the latter shall apply. The statutory compensation shall be determined by the court within the statutory range according to the type of patent, the nature and circumstances of the infringement, and the reasonable expenses for protecting rights may be claimed separately.

Q2: I don't have any evidence showing that the infringer made money. What should I do?

The right holder may apply for procedural relief. The right holder may apply to the court to order the infringer to provide bookkeeping information related to the infringement, or apply for evidence preservation and an investigation order to obtain sales and financial data. If the infringer refuses to provide the information without a valid reason, the court may determine the amount of compensation by referring to the right holder's claims and evidence.

Q3: How much is the statutory compensation usually paid out?

According to the provisions of the Patent Law of the People's Republic of China, the statutory compensation range is between 30,000 yuan and 5 million yuan, which shall be determined by the court based on factors such as the type of patent, the nature and circumstances of the infringement. The actual amount varies greatly and needs to be comprehensively judged based on evidence such as the scale of the infringement, the duration of the infringement, the subjective state of the infringer, and reasonable expenses.

Q4: Will intentional infringement result in higher compensation?

Yes. For intentional infringements of patent rights with serious circumstances, the amount of compensation may be determined to be no less than one time but no more than five times the amount calculated according to the corresponding method. To claim punitive damages, it is usually necessary to prove that the infringer knew the existence of the patent but still committed the infringement, or that there were circumstances such as repeated infringements or engaging in infringement as a business.

Q5: Can the other party be made to bear the attorney's fees?

This can be claimed. According to the Patent Law of the People's Republic of China, the amount of compensation shall include the reasonable expenses paid by the right holder to stop the infringement, such as attorney's fees, notarization fees, and appraisal fees. Whether the claim can be supported and the specific amount will depend on the evidence of necessity and reasonableness, and the corresponding receipts should be kept. For more information, please refer to the Patent Law of the People's Republic of China.Intellectual property protection and corporate law.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, to avoid missing the statutory time limit. →Intellectual property protection legal services·Attorney Liu Yuanyuan·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.