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).
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…
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…
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…
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…
According to Article 65 of the European Patent Convention (“EPC”), when the European patent granted is not drafted in one of the official languages of the EPC, any contracting state may require that the patent owner file a translation of the patent with the national patent service within 3 months of the publication of the…
Thanks to the constitutional revision of 23 July 2008 (which created Article 61-1 and amended Article 62 of the French Constitution), a new procedure to control the constitutionality of laws was introduced into French law, which came into force on 1st March 2010: the “priority question on constitutionality” (“question prioritaire de constitutionnalité”). Before this reform, the constitutionality could only be verified…
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…
After widespread reform in late 2010 (previously reported here), the Patents County Court (the “PCC”) is increasingly becoming a court of choice in intellectual property matters in England and Wales, particularly for small and medium-sized enterprises (“SMEs”). Part of the revamp included introducing a cap on costs (provided by CPR rules 45.41 – 45.43). In…
The High Court considered the extent to which a claim for damages in a patent infringement case could be extended at the damages inquiry stage. It found that whilst it is just and convenient to extend the inquiry to infringing acts of the same type as that on which the Court in the main action…
By decision of 5 April 2012, no. 5497, the Italian Supreme Court resolved an interesting case concerning the application of Article 68 (3) Italian IP Code, according to which “Whoever, in the course of 12 months preceding the filing date of the patent application or its priority date, has made use of the invention in…
