Case studies and analyses on patent contribution rates can provide practical guidance for practice.
Author | Zhang Jianfeng, Yao Guanyang, Beijing Liushen Law Firm
Edit | Bruce
With the increasing sophistication of the calculation of damages in patent infringement lawsuits, it is likely that the calculation of damages will involve the multiplication of product sales, unit price, profit margin and patent contribution rate, whether the infringer's profit from infringement or the loss of the patentee. One of the most difficult factors to determine is often the patent contribution rate.
According to the general understanding, the "patent contribution rate" can be regarded as the contribution of the patented technology to the operating profit, in other words, the ratio of the patented technology to the operating profit. Given that the composition of a product's operating profit can be complex and influencing many factors, such as brand, sales strategy, other patented technologies, etc., it is difficult to determine the contribution of a patent very precisely. It is for this reason that case studies and analyses on patent contribution rates can provide practical guidance for practice.
1. Statistics on patent contribution rate
This article collects statistics on the judgment cases made public by the Intellectual Property Court of the Supreme People's Court from January 2021 to March 2023, among which among the cases in which the specific value of the patent contribution rate is clarified, the patent contribution rate is determined to be the lowest 3%-5% ((2021) Zui Gao Fa Zhi Min Zhong No. 920) and the highest is determined to be 70% ((2020) Zui Gao Fa Zhi Min Zhong No. 580). However, the number of cases in which the value of the patent contribution rate is clarified is relatively small, and more often than not, the specific value of the patent contribution rate is not directly given in the judgment.
In this regard, in cases where the value of the patent contribution rate is not specified, the value of the implied patent contribution rate can be extrapolated from the ratio between the final award and the operating profit of the infringing product. After calculating the amount of compensation and profit in this way, it is found that the implied patent contribution rate is basically between 20% and 40%. In the Supreme People's Court's recent judgment (2022) Zui Gao Fa Zhi Min Zhong No. 479 of a utility model patent infringement case, although the plaintiff claimed a 20% patent contribution rate in the first instance, it was not recognized by the court of first instance due to lack of evidence support. The court of second instance held that considering and assuming the patent contribution rate of 25% and taking into account the duration of the infringement, a value similar to that determined by the court of first instance was 2 million yuan. It can be inferred from this that for utility model patents, the patent contribution rate of about 20% is reasonable, and it may be recognized by the court as one of the comprehensive factors in calculating or determining the amount of damages.
In cases where the value of the patent contribution rate has not been clearly determined, the main factors considered by the court include the type of patent, the value of the patent, the scale of the infringement, the subjective fault of the infringer, and the circumstances of the infringement, but there is no specific argument on the calculation method of the patent contribution rate. In cases where the value or scope of the contribution rate is clarified, the court focuses on factors such as the importance of the patent to the entire product, whether it can be replaced by other technologies, whether it involves core technologies, and whether it produces specific value gains. It can be seen that when the court discusses the patent contribution rate, it is very procedurally necessary to refer to the parties' evidence on the value of the patent. Therefore, when the specific value of the patent involved is different, it is necessary to adopt different criteria to clarify the factors to be considered and the method of obtaining the patent contribution rate. The following is a selection of some typical cases to summarize and analyze the specific criteria for judging the contribution rate of patents.
2. Typical case studies
(1) Dunjun Company v. Tengda Company, a dispute over infringement of invention patent
Keywords: Burden of proof obstruction
Shenzhen Dunjun Technology Co., Ltd. (hereinafter referred to as Dunjun Company) v. Shenzhen Jixiang Tengda Technology Co., Ltd. (hereinafter referred to as Tengda Company) for infringement of invention patent (second instance case number: (2019) Zui Gao Fa Zhi Min Zhong No. 147) is a typical case in the Essence of the Judgment of the Intellectual Property Court of the Supreme People's Court (2019) issued by the Supreme People's Court in April 2020. From this case, the adjudication rule of "calculation of damages when the accused infringer refuses to provide the infringing account books and materials without justifiable reasons" was extracted.
In this case, in the course of the first instance, Dunjun Company used the selling price and evaluation number of the infringing products in Jingdong Mall (Tengda JD.com's self-operated flagship store) as evidence of the sales unit price and sales volume of the infringing products, but did not provide direct evidence on the profit margin of the infringing products. In this regard, the court of first instance issued a notice, requiring Tengda Company to submit complete information on the production and sales of the infringing products involved in the case and complete financial account books. Tengda, on the other hand, did not submit relevant financial data. Subsequently, when calculating the amount of damages, the court of first instance determined that the total sales of the infringing products were 19.58 million yuan based on the evidence provided by Dunjun Company from Jingdong Mall, and the profit margin was determined to be 30% according to the general situation of the industry, and the profit from the infringement was about 6.1 million yuan. Accordingly, the court of first instance upheld Dunjun's claim for RMB 5 million in compensation based on the evidence provided by Dunjun Company and considering Tengda's refusal to provide relevant account book materials.
In the second instance, Tengda appealed, arguing that the profit margin of 30% was obviously too high, and that the contribution rate of patents should be considered. However, the court of second instance held that "under the circumstance that Tengda Company refused to provide the basic facts about the scale of the infringement, resulting in the lack of basic facts on the scale of the infringement in the consideration of the contribution to the patented technology, this court did not support Tengda's defense claims in the second instance that the amount of compensation determined by the original trial was too high". In the end, the court of second instance also upheld the amount of compensation of 5 million yuan claimed by Dunjun Company.
Although the degree of contribution of the patented technology was not clearly calculated in this case, it can be understood from the judgment of the second instance that if the court ordered the defendant to submit the account books and materials of the products involved in the case but the defendant refused to provide them, then the court's argument on the defendant's contribution to the patented technology would probably not be considered, because the basic fact of the scale of the infringement could not be proved, let alone the geometric degree of technical contribution. This reflects an effort by the court to use the system of obstruction of proof to induce the defendant to voluntarily provide evidence on the amount of compensation. It may be beneficial to the plaintiff to assume that if the defendant had actually submitted financial books, the sales volume of the infringing product on which damages were based could be clearly clarified. As a balance, the defendant is not completely devoid of "benefits", and he can at least argue for the degree of technical contribution to reduce the amount of damages.
Of course, it can also be assumed that if the amount of damages claimed by the plaintiff is higher than the actual profits of the defendant, then the defendant will usually provide the account books, and conversely, if the defendant has refused to provide it, especially if it has resolutely refused to provide it despite the court's order, then this act itself may also imply that the amount of damages claimed by the plaintiff does not exceed the actual profits of the defendant's infringement. In this case, although the profit margin and the contribution of the patented technology claimed by the plaintiff, i.e., the right holder, may be exaggerated, the above judgment still reflects fairness on the whole.
(2) TCL v. Meibo Company, a dispute over infringement of invention patent
Keywords: technical criticality
In this case, TCL Air Conditioner (Zhongshan) Co., Ltd. (hereinafter referred to as TCL) claimed that Guangdong Meibo Refrigeration Equipment Co., Ltd. (hereinafter referred to as Guangdong Meibo Company) infringed its invention patent for air conditioning grille by manufacturing and selling a certain air conditioner, and the courts of both instances confirmed the infringement facts.
In calculating the amount of damages, the court investigated the scale of the infringement, the profit margin of the industry and the contribution rate of the patent based on the evidence. Among them, regarding the technical contribution rate of the patent, the plaintiff TCL Company asserted that there were 9 patents for the products involved in the case, and the contribution of the patented technology was calculated to be 11.11% according to the proportion of the patents involved in the case. However, the court of first instance did not accept this claim. The court of first instance considered the following factors: consumers mainly consider energy efficiency, brand reputation and additional services when choosing air conditioning products, and the patented technology only involves the air grille components in the air conditioning technology, rather than the core compressor part, so the court of first instance held that the technical contribution rate of 11.11% was too high, and decided to consider it between 3% and 5%. In the end, the court of first instance awarded 1.6 million yuan in compensation.
In this case, the court determined the numerical range of the patent contribution rate according to the specific facts of the case and elaborated on the factors that should be considered, which is of good guiding significance for the determination of the contribution rate. An important part of determining the contribution rate of a patent is to assess the value of the patent. In the case of patents for conventional technology, which are often only partial improvements, and do not lead to product innovation or great improvements, courts often do not overdetermine the contribution rate of the technology. In addition, when clarifying the profits obtained due to infringement, the profits brought by the value of the infringing products themselves will also be taken into account. Therefore, brand awareness (such as whether there is a registered trademark, well-known trademark), additional services (such as warranty and other services), and marketing methods (discounts, etc.) often also contribute greatly to profits, so when judging the contribution rate of patented technology to profits, it will not only consider how much patented technology the product itself has. This further reflects the provisions of Article 16 of Interpretation (I), that is, the benefits arising from other rights should be reasonably deducted. In response to a reporter's question, the person in charge of the Intellectual Property Division of the Supreme People's Court also clarified that rights other than individual patent rights, such as trademark rights, need to be considered.
This case provides a clearer consideration in determining the contribution rate of patents to profits. On the whole, the factors that should be considered when judging the contribution rate of patented technology to profits include: whether the technical field of the patent is critical or non-critical, the innovation height of the patented technology, and the added value of the infringing product.
(3) Siemens v. Suzhou Inovance Company et al., a dispute over infringement of invention patent
Keywords: product selling point
In this case, Siemens claimed that Suzhou Inovance Technology Co., Ltd. (hereinafter referred to as "Suzhou Inovance") and Shenzhen Inovance Technology Co., Ltd. ("Shenzhen Inovance") infringed its invention patent rights involving "drive", and both the court of first instance and the court of second instance determined that the infringement was established.
In determining the amount of damages, Siemens asserted that profits based on infringement were calculated as follows:
Compensation amount = total sales volume × product unit price × operating profit margin × patent contribution rate
Among them, the patent contribution rate is 1/3, the compensation amount can reach 13.43 million yuan, and the compensation is 6 million yuan. In this regard, Suzhou Inovance only denied the total sales volume and patent contribution rate claimed by Siemens, but did not provide real data, so the court of first instance upheld the compensation of 6 million yuan claimed by Siemens.
In the second-instance proceedings, Suzhou Inovance asserted that the patent contribution rate was overestimated. In this regard, the court of second instance held that "when taking the patent contribution rate as a factor in determining the amount of compensation, it should not only be considered based on the proportion of the parts themselves in the overall product." At the same time, Suzhou Inovance Company also publicized the alleged infringing technology on its official website, and potential users may choose between different products because the alleged infringing product has this function, which can also show that the patented technology involved in the case has high value." In the end, the court of second instance upheld the judgment of the first instance and awarded 6 million yuan in compensation.
From this case, it can be further seen that the important factors to consider in the contribution rate of patents include the value of the patented technology and whether the patent is a key technology, and the contribution rate cannot be judged simply by the proportion of the value of the parts themselves in the total value of the product. In this case, the patented technology was advertised on its website by the infringed party as an important function, which in itself represents that the patented technology has a high value and can be regarded as a factor for consumers to purchase the product. In addition, if there is no patented technology, the corresponding function cannot be realized or the same technical effect cannot be achieved, which indicates that the patented product belongs to a relatively key component, and the patented technology belongs to the key technology of the product in question. Of course, whether it is a key technology can also be judged from whether there are alternatives in the market, but the infringer has not proved this. In addition, the court also emphasized the infringer's duty of good faith, and also considered the circumstances of the infringer's failure to provide financial account books when determining the overall amount of compensation.
This case also provides clear guidance on how to determine the contribution rate, that is, it is necessary to consider the value of the patented technology to the product and whether it can become a "selling point", and when the patented technology becomes an important function of the product and is widely publicized, the contribution rate of the patented technology to the product should be considered to be relatively high. In this case, 1/3 of the patented technology contribution rate is reasonable. In addition, this case also provides guidance on how to determine the patent contribution rate when the infringing product is a component of another product, that is, the value of the component to the overall product should not only be considered, but not only the value of the component itself.
(4) VMI v. Safe-Run Suzhou Company et al., a dispute over infringement of invention patent
Keywords: technical effect and value gain
In this case, VMI Netherlands (hereinafter referred to as VMI) claimed that Safe-Run Intelligent Equipment Co., Ltd. (hereinafter referred to as Safe-Run Suzhou) and Safe-Run Mechanical Engineering (Shanghai) Co., Ltd. (hereinafter referred to as Safe-Run Shanghai) infringed their invention patent rights involving "cutting device", and both the court of first instance and the court of second instance determined that the infringement was established.
The patent in question relates to a cutting device for cutting rubber, and its beneficial technical effect over the prior art is to enhance the cutting effect and reduce the failure rate at the same time. The alleged infringing product was the "tire building machine" of Safe-Run Suzhou Company, which used the cutting device described in the patent in question.
The judgment in this case records in detail the issue of how to determine the contribution rate of the cutting device involved in the case by calculating it. The plaintiff, VMI, argued that the "difference in conveying failure rate" between the tire machine with the cutting device in question and the tire machine without the cutting device in question could be calculated, and the specific calculation formula was as follows:
Poor number of failures× average repair time per failure÷ single tire production time = increased output due to patent failure avoidance
The yield increased by the patent to avoid failures ÷ daily output = the contribution rate of the patent to the total output = the contribution rate of the patent to the profit of the finished product
Among them, the plaintiff VMI effectively proved that the "number of failures" of the tire building machine using the cutting device in question was almost zero, while the "number of failures" of the tire building machine without the cutting device was about 30-45 times per day, so the "failure difference" was 30-45 times per day, and the "average repair time per failure" was 2-50 minutes, and the "single tire production time" was less than 38 seconds, and the "output increased by the patent to avoid failures" was obtained Approximately 212-285 tires per day. In addition, VMI proved that the tire building machine in question produced 1,800 tires per day, and therefore:
The contribution rate of patents to the profit of finished products = the output increased by patents to avoid failures÷ daily output = 11.8%-15.8%.
In this regard, the defendant Safe-Run Suzhou Company argued that the cutting failure rate had been reduced to zero many years ago, and the background technical solution of the patent in question had been able to achieve a zero failure rate, and that the German HF Company, which ranked first in the rubber machinery industry in the world, had adopted the prior technology, and its cutting failure rate was also zero. Therefore, Safe-Run Suzhou argued that VMI's claim of failure rate had no factual basis.
However, in terms of proof, the third-party expert witness hired by VMI proved the fact that the failure rate was reduced, while Safe-Run Suzhou did not provide strong evidence to the contrary. In this case, the court of first instance held that the patent in question could significantly reduce the failure rate compared with the traditional cutting device. Furthermore, the court of first instance found that VMI's above-mentioned calculation method was reasonable, and that the number of failures of the alleged infringing product after adopting the patent in question was the tire manufacturer's ability to avoid lost productivity and thus increase production, which also reflected the value of the patent in question. In the end, the court of first instance determined the "average time to repair each failure" as 3 minutes, and concluded that:
Patent contribution rate = (30 to 45 times) * 3 minutes ÷ 38 seconds ÷ 1800 = 7.89% to 11.84%
The second-instance judgment upheld the first-instance judgment, i.e., affirmed the method of calculating the patent contribution rate.
This case accurately determined the specific value of the patent contribution rate, which is inseparable from the technical effect that can be achieved by the patented technology in question. Through the direct comparison of products with patented technology with patented technology with products without patented technology, the direct benefits of the technical effect are demonstrated, so this part of the benefits can be directly converted into the contribution of patents. This calculation is very much in line with the internal logic of the "patent contribution rate", so that the establishment of the calculation formula can be recognized by the judge to a large extent. This may also be the reason why the judgment in this case gives a relatively accurate calculation of the patent contribution rate, which is very rare. In addition, in this case, the value of the patent contribution rate was about 10%, which itself was within the confidence range, thus further strengthening the rationality of the calculation formula. Of course, the proof of the individual data of the formula is also crucial in this process.
This case provides an idea of determining the contribution rate of a patent, that is, directly converting the technical effect of the patent into a value gain, so as to directly determine the contribution rate through this additional value gain.
(5) Hua Hin Company v. Zhaoke Company et al., a dispute over infringement of invention patent rights
Keywords: circumstances and nature of the infringement
In this case, Guangzhou Huaxin Electronic Technology Co., Ltd. (hereinafter referred to as Huaxin Company) claimed that Guangzhou Chengke Trading Co., Ltd. (hereinafter referred to as Chengke Company), Guangzhou Junhai Trading Co., Ltd. (hereinafter referred to as Junhai Company), Guangzhou Zhaoke Electronic Technology Co., Ltd. (hereinafter referred to as Zhaoke Company), Junling Electronics (Dongguan) Co., Ltd. (hereinafter referred to as Junling Company) and Foshan Xiaxin Technology Co., Ltd. (hereinafter referred to as Xiaxin Company) infringed their patent rights regarding the invention of "a touch screen and its multi-channel sampling method". It is worth noting that the background of the dispute between the parties is that Chengke Company, Junhai Company and Zhaoke Company are all companies established by the former employees of Huaxin Company, while Junling Company and Xiaxin Company are the product processing plants of the three companies. Therefore, Hua Hin also initiated a trade secret lawsuit based on the infringing products.
In this case, the first-instance judgment found that the product in question was not infringing, while the second-instance judgment found that the product in question was infringing and upheld the amount of compensation claimed by the right holder, of which the patent contribution rate was determined to be 70%.
Hua Hin asserted that since the patent in question involved the overall processing logic and framework technology of the infrared touch screen, which was the core technology of the alleged infringing product, it was determined that the profit contribution rate of the patent in question to the alleged infringing product was 70%.
In this regard, the defendant company asserted that Hua Hin also filed a lawsuit on the grounds that the alleged infringing product in this case infringed its trade secrets, and demanded a relatively large amount of compensation, so when determining the amount of compensation in this case, the technical contribution rate of the patented technology involved in the case to the alleged infringing product should be considered.
In this regard, Hua Hin asserted that the technical contribution of the patented technology involved in the case (involving the hardware part of the product) to the alleged infringing product was 70%, and the remaining technical contribution was made by Hua Hin Company's trade secrets (involving the software part of the product).
In the end, the court of second instance held that although the accused company claimed that the technical contribution of the allegedly infringing product also came from "trade secrets", it did not prevent the technical contribution rate in this case from being determined to be 70%, so the court of second instance upheld Hua Hin's claim for the contribution rate in this case and clarified that other technical contributions were made by Hua Hin's trade secrets.
In this case, the patent contribution rate was determined to be a high value, which was related to the fact that the patented technology involved in the case was a key technology on the one hand, and the relationship between the parties and the disputes in other cases on the other hand. If these aspects are summarized as statutory causes, it can be said that the factors affecting the determination of the contribution rate also include the nature and circumstances of the infringement. Since it was ascertained in this case that many of the senior personnel of the accused company were from Hua Hin Company and had signed confidentiality agreements with Hua Hin Company, there were also trade secret disputes between the two parties, so once it was determined that the accused infringing products fell within the protection scope of the patent in question, the accused company would be in a disadvantageous position.
The nature and circumstances of the infringement usually include the degree of subjective fault of the infringer, the means and methods of infringement, the duration of the infringement, and the degree of damage caused to the right holder. When it is not possible to determine the exact amount of damages, the nature and circumstances of the tort may be taken into account in the context of statutory damages. In this case, it can be seen that although the court did not directly discuss the nature and circumstances of the infringement, according to the usual trial thinking, it should have had an impact on the calculation of the amount of damages and thus the determination of the patent contribution rate.
(6) Galanz Company v. MeiG Company, a dispute over infringement of invention patent rights
Keywords: Extension of contributions
In this case, Guangdong Galanz Microwave Oven Electrical Appliance Manufacturing Co., Ltd. (hereinafter referred to as Galanz Company) claimed that Zhongshan Meige Electronic Technology Co., Ltd. (hereinafter referred to as MeiG Company) infringed its patent right for its invention entitled "Riveting Cap Mold for Riveting the Upper Cap of Magnetron".
The plaintiff, Galanz, claimed that the amount of compensation should be 10 million yuan based on its actual losses, and the calculation method was as follows:
Galanz company's magnetron product profit× the number of Mag company's magnetron products sales× the contribution rate of the patented technology involved in the case.
In this regard, the defendant MeiG Company argued that the alleged infringing product was not a magnetron, but a processing mold used to rivet the upper cover of the magnetron, and its value of the entire magnetron product accounted for a small proportion, and Galanz's claim for compensation and calculation method had no legal basis.
As to whether the contribution of the mold patent can be extended to the magnetron products produced by the mold, the court of second instance found that the allegedly infringing rivet cap mold, as a processing mold for magnetron products, did not enter the market itself, and there was no evidence that there were other technical solutions on the market that could replace the rivet cap mold, and its market value could not be confirmed. Under such circumstances, considering the objectives of the patent infringement damages system and the fact that the riveting mold is a necessary production tool for the manufacture of magnetron products, it is reasonable to take the magnetron, which is the most direct link in the market interest, as the basis for calculating Galanz's actual losses.
In addition, the court of second instance also considered the related cases of the case, including disputes over infringement of trade secrets, infringement of invention and utility model patents, and considered the importance of various technologies to the production of magnetrons, distinguished different intellectual property rights on magnetron products, and finally determined the patent contribution rate at 10%.
It can be seen from this case that when the court applied the damages for patent infringement, it established a correlation between the value of the product and the value of the mold patent for the fundamental purpose of compensating for the loss, when the mold patent itself could not be measured by the actual value. At the same time, the allocation of patent contributions also takes into account the many intellectual property rights carried on the product, and then also takes into account the corresponding contribution of the technology used in the production of the product, so that the patent contribution rate is finally determined through the superposition of various factors. Through this case, it can be seen that although the determination of the patent contribution rate involves complex factors, the essential principle of the patent infringement damages system should be upheld.
3. Guidance on Practice
In mainland patent infringement litigation cases, the determination of the patent contribution rate is undoubtedly a very complex issue with great uncertainty. A basic principle is to demonstrate the technical effect of the patented technology on the product and the resulting commercial value. Under the guidance of this principle, although there is still no quantitative algorithm for the patent contribution rate, a reasonable range can basically be obtained after considering various factors. Both parties to the litigation can draw nourishment from the above cases and deeply consider the rights and obligations of both the offensive and defensive parties in the litigation process.
From the perspective of the plaintiff's practice, the following points can be summarized:
- Focus on the value that can be generated by the technical effects of patents. The "value" here can be reflected in many aspects, such as safety performance, energy efficiency, cost-effectiveness, popularity, and so on. In order to embody these values in a practical way, it is necessary to try our best to find and form a favorable chain of evidence in the litigation process, and reasonably establish a connection between the value and the patent. In addition, efforts should also be made to prove the fact that the patented technology is actually different from the original technology, and the benefits brought by this difference in the design, production, and sales related to it. Therefore, in the process of proving the value of patents, the focus is not only on the detailed discussion of the patented technical solutions and their backgrounds, but also on the role and impact of patents in the context of the actual business process.
- The position of patents in the overall product system. The contribution rate of patents often depends on the position of patents in the product system. For example, for core patents or standard essential patents, the technical content is usually high. Therefore, when the patent is very important to the product system, the proof of this aspect should also be as perfect as possible, of course, this aspect can still be combined with the elaboration of the patented technical solution.
- Prove the nature and circumstances of the other party's infringement. In this regard, if the defendant has previously been found to have infringed the plaintiff's patent, it is difficult to say that the defendant has fulfilled its duty of care when the defendant infringes again. In addition, in terms of the circumstances of the infringement, it is necessary to prove as far as possible the duration, geographical scope, scale, and consequences of the infringement, and these facts indirectly prove the contribution of the patent to the product, or more precisely, the contribution of the patent to the sales of the product.
From the practical perspective of the defendant, the following points can be summarized:
- Avoid the burden of obstruction of evidence. First of all, if the defendant refuses to provide relevant financial data before the discussion of the patent contribution rate, it may be judged to bear the burden of proof obstruction under the guidance of the above case, which may result in "no opportunity" to effectively refute the plaintiff's claim of (possibly exaggerated) patent contribution rate. Refusal to provide financial data often leads to "mental evidence" that the amount of damages claimed by the plaintiff is less than the actual reasonable profit of the infringing product. This is actually very disadvantageous for the defendant. Regardless of the impression left on the court, this may even provide an opportunity for the plaintiff to change his claim (to increase the amount of damages). If the financial data is provided when the amount of compensation is unbearable, it is easy for the judge to question the integrity of the defendant and even affect the authenticity of the financial data. Therefore, when the court believes that the defendant should provide financial data, the defendant should actively cooperate.
- Submit financial data within reasonable limits. Nor was the defendant entirely passive in the submission of financial data. The defendant may attack the authenticity and legitimacy of the evidence of the infringing product provided by the plaintiff, and limit the number of models of the infringing product in terms of the rules of evidence. In addition, if the infringing products are from different sellers, the plaintiff can also challenge the eligibility of the different sellers as co-defendants. After the specific product model is determined, it is also necessary to sort out the start and end time, sales, cost, and three fees of the relevant financial data, and the final financial data submitted should have full authenticity. When the financial data shows that the profit from infringement is obviously too low, the plaintiff will often question the authenticity of the data or disagree with the authenticity of the data, and when the financial data has obvious flaws or is difficult to be self-consistent, it is often difficult to obtain recognition from the court. Therefore, the defendant should make the financial data "sufficiently true" to at least form a preponderance of the evidence and shift the burden of proving the non-truthfulness of the financial data to the plaintiff. In short, the defendant should uphold the principle of good faith and actively cooperate with the court's request, but should strive to provide true financial data within a reasonable range as much as possible, so as to avoid bearing the burden of obstruction of proof, so as to have the opportunity to refute the unreasonableness of the patent contribution rate.
- Corresponding to the above actions of the plaintiff, the defendant should also strive to prove that the value of the patent is low, that the patent has a low status in the product system, and that the plaintiff is refuted in terms of the nature and circumstances of the infringement. Therefore, the defendant should fully explain the patented technology, its background and development, clearly explain the source of the technology it used, and strive to prove itself in terms of the nature and circumstances of the infringement, so as to try to give a reasonable explanation of the actual value of the patent, so as to be able to limit the patent contribution rate to the smallest possible scope.
Although the factors affecting the contribution rate of patents vary from case to case, they all reflect the value of patents from different dimensions. Through the guidance of these cases, both parties can be targeted, so as to present evidence and proof more comprehensively. In the context of strong protection of intellectual property rights, this kind of complex evidence and calculation will become very valuable with more and more disputes and more and more complex economic behaviors, and the corresponding precedents will provide more scientific and detailed adjudication rules for the mainland.
(This article only represents the author's point of view and does not represent the position of intellectual property)
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