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.
The Duesseldorf Court of Appeal referred in a recent decision to the commandment “You shall not lie!” – with severe consequences as to the cost risk of patent proceedings (court order of 15 April 2010 – ref. I-2 W 10/10; InstGE 12, 107 – Du sollst nicht lügen!). Under German law, the losing party has…
This case provides a rather complete example of how to calculate damages in a patent infringement action in France. When the patent owner directly works out his patent in France, damages are based on lost profits and completed by additional royalties if the lost profits are below the amount of total infringing sales. When the…
