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Account of profits

Account of profits is one of the remedies for patent infringement. Once a claimant has successfully proved liability, they can opt to prevent the unjustified enrichment of the defendant. This limits the award for the claimant to the sum of the profits made by the defendant.

The difficulty is determining which profits are part of the patentable invention. The account for profits cannot be unfair to the defendant so the profits might be split. As a result a forensic account with knowledge of the industry will usually make the assessments.

Other remedies for patent infringement are injunctions or damages.

Account of profits, Case Law, Germany, Infringement, Injunction, Patents, SEP

Another German FRAND Ruling – OLG Karlsruhe, Judgment of 30 October 2019, 6 U 183/16 (Philips v Wiko)

Hetti Hilge (Rospatt Osten Pross )/December 4, 2019December 3, 2019

In its latest ruling on FRAND and the Art. 102 TFEU defense, the OLG (Higher Regional Court) Karlsruhe put an emphasis on the ‘fairness’ of the licensing negotiation procedure and thus on the ‘F’ prong of FRAND. To allow fair and expedient licensing negotiations and avoid a finding of abuse of dominance, the owner of…

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Account of profits, Case Law, Germany, Infringement, SEP

The ‘Non-Discriminatory’ Prong is ‘Essential’ to FRAND Evaluation – Unwired Planet v Huawei – Oberlandesgericht Düsseldorf

Thomas Musmann (Rospatt Osten Pross)/June 6, 2019June 6, 2019

by Hetti Hilge In its latest FRAND judgment the Düsseldorf appeal court confirmed that in the context of FRAND evaluation the emphasis shall be – in contrast to English practice – on the ND (‘non-discriminatory’) prong of FRAND. The decision was rendered on 22 March 2019 in the appeal proceedings between Unwired Planet and Huawei…

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(Indirect) infringement, Account of profits, Damages, Mechanical Engineering, Switzerland, Validity

Action by stages: Swiss Federal Patent Court streamlines requirements for disclosure of information and financial accounting

Simon Holzer (MLL Meyerlustenberger Lachenal Froriep Ltd.)/October 6, 2015March 18, 2017

As in other jurisdictions patentees in Swiss patent disputes often rely on the so called action by stages approach, which allows patentees to demand disclosure of information and financial accounting before the proceedings progress to the actual claim for lost profits, infringer’s profits or a royalty fee. In a recently published decision dated 25 August…

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Account of profits, Damages, France

Allocation of the profits made by the infringer as damages

Pierre Véron (Véron & Associés)/December 5, 2012

Since French Act No. 2007-1544 of 29 October 2007, which implemented Directive No. 2004/48/EC into French law, it is expressly stated in Article L. 615-1 of the French Intellectual Property Code (IPC) that “Any violation of the rights of the owner of a patent (…) shall constitute an infringement. An infringement shall imply the civil liability of the infringer”. The…

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(Indirect) infringement, Account of profits, Damages, Germany

Infringer’s Profit – German Federal Supreme Court (Bundesgerichtshof) on the amount of damages

Thomas Musmann (Rospatt Osten Pross)/November 23, 2012

by Hetti Hilge The German Federal Supreme Court (BGH) confirmed that the patent owner may recover the infringer’s profit in so far, and only in so far, as it results from the use of the patent (BGH, judgment of 24.07.2012, X ZR 51/11 – Flaschenträger). With this decision the X. Senate (bench) of the BGH…

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(Indirect) infringement, Account of profits, Case Law, Damages, Germany

Flaschentraeger, Federal Court of Justice (Bundesgerichtshof), 24 July 2012

Simon Klopschinski (Rospatt Osten Pross )/November 22, 2012

The amount of its profit the infringer will have to pay to the patentee as damages is calculated solely based on the profit earned by use of the intellectual property right. To determine this profit it must be assessed if, and to what extent this profit was due either to the invention’s technical features embodied…

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(Cross-border) jurisdiction, (Indirect) infringement, Account of profits, Case Law, Damages, Netherlands

Primus v. Roche, Court of Appeal The Hague (Gerechtshof Den Haag), 21 August 2012

Peter Burgers (Brinkhof)/October 14, 2012

The Court of Appeal held that Roche c.s. infringed the patent. Test results regarding the allegedly infringing product were admitted as evidence because Roche’s arguments were held insufficient to render these tests unreliable. Furthermore, the court ruled that it has jurisdiction to decide on the infringement in Germany based on Art. 24 EC 44/2001, because…

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(Indirect) infringement, Account of profits, Germany

Accounting on infringer's profit

Bernward Zollner/January 6, 2012

by Bernward Zollner rospatt osten pross In two decisions of May and September 2011 the Appeal Court Düsseldorf had to comment on various issues concerning the accounting and determination of patent infringer’s profit. In the decision of May 2011 it is stated that an obligation of defend-ant to amend or specify an accounting cannot be…

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Account of profits, Germany

Actual Decisions Regarding the Two Calculation Methods “Infringer’s Profit” and “License Analogy”

Thorsten Bausch (Hoffmann Eitle)/October 14, 2011

As is known, damages for patent infringement may be calculated using one of three calculation methods, i.e. infringer’s profit, licence analogy and lost profit. Two recent decisions, one by the Higher Regional Court Frankfurt regarding infringer’s profit and one by the Regional Court Munich regarding license analogy, are evidence of actual tendencies being taken by…

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(Compulsory) license, (Cross-border) jurisdiction, (Indirect) infringement, Account of profits, Austria, Belgium, Bulgaria, Countries, Czech Republic, Damages, Denmark, Enforcement, EPC, Estonia, European Union, Exceptions to patentability, Extent of Protection, Finland, France, Germany, Greece, Hungary, Iceland, Industrial application, Injunction, Inventive step, Ireland, Italy, Latvia, Lithuania, Netherlands, Norway, Novelty, Opposition, Poland, Portugal, Prior use right, Public prior use, Revocation, Romania, Scope of protection, Slovenia, Spain, Sweden, Switzerland, Turkey, United Kingdom, United States of America, Validity

The World Patent and the World Patent Litigation System

Thomas Musmann (Rospatt Osten Pross)/May 27, 2011

Imagine: Wouldn’t it be fantastic to have one single patent which you could apply for at the WPO, the World Patent Office? A World Patent, which would be valid worldwide and which could be enforced in each single country of the world with worldwide effect? Decisions of the national local chambers of the World Patent…

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