Damages can be awarded if a patent has been infringed. Under U.S. law a patentee is entitled to damages adequate to compensate for any infringement and that compensation cannot be less than a reasonable royalty for the use made of the invention by the infringer. Enhanced patent damages are appropriate to punish an infringer’s egregious, deliberate, or flagrant patent infringement. In Europe the scope of damages awarded for patent infringement and the process of how they are awarded varies between the different European states. In general a patent holder can claim the profits of the infringer or remuneration of its own lost profits (e.g. calculated in the form of a a reasonable license fee).
In the Sanofi v. Teva ruling of 10 July 2014, the Court of Milan clarified the test for abuse of process, and denied an award of damages allegedly caused by the issue of a preliminary injunction which was later lifted due to the revocation of the enforced SPC. The case concerned the Italian part of the irbesartan…
The newly established 15th Patent Senate of the Appeals Court of Düsseldorf (Presiding Judge Dr. Ulrike Voß) has referred a number of questions concerning the calculation of damages in IP cases to the European Court of Justice. This opens the floor for the ECJ to talk about damages, as far as I know for the…
(1) If a plaintiff can prove there was an “offering” of means for the patented purposes, it can be assumed that the means were also delivered for those purposes, and that therefore the plaintiff has a right to claim damages and the provision of information due to indirect infringement. (2) When a patent is assigned…
Under the legal principle of forfeiture of claims a patentee can deprive himself of claims for patent infringement if he asserts them in legal proceedings at such a late stage (time factor) that the infringer from an objective perspective could trust that he would not anymore be subjected to the claims and has made dispositions…
A recent decision of the Higher Regional Court (Oberlandesgericht) Düsseldorf now confirms that a holding company cannot easily dive away under the patent infringing activities of its subsidiaries. Background Many companies are designed in the form of a group, having a holding company at the top and a number of subsidiaries which are directly or…
The Mannheim Regional Court decided on March 8, 2013 (court docket: 7 O 139/12) that a supplier which is located abroad is regularly only liable for participating in patent-infringing acts in Germany if the foreign supplier learns, e.g. by means of a warning letter, that its supply of products to the German market may result in a patent infringement under German law and if the supplier does not refrain from further shipments into Germany.
The Court of Appeal held that the duty to compensate the successful party’s legal costs in intellectual property proceedings, pursuant to Art. 14 of the Enforcement directive, also applies to invalidity claims, counterclaims and defenses by the alleged infringing party threatened with patent enforcement. To deny such compensation in respect of nullity claims or defenses…
The Court of Appeal of Liège confirmed the President of the Commercial Court’s finding that the appellant had committed patent infringement, and ordered the reimbursement of costs of the saisie-contrefaçon (seizure of evidence), which were not considered damages but as procedural costs. Click here for the full text of this case. A summary of this case…
The Supreme Court held that the relevant date of a patent’s enforceability, in case a Spanish translation is required for such enforceability, is the date of announcement of the grant of the patent by the EPO, rather than the date of actual filing of the Spanish translation at the Spanish Patent Office, or the publication…
Historically, damages used to be calculated in the so-called “execution” (i.e. enforcement) phase of the proceedings, i.e. a second phase of the proceedings aimed at implementing the declarations and orders included in the judgment handed down after declaratory infringement proceedings. Due to the abuse of this system, in practice, the “execution” phase resulted in complex…
