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Allocation of the profits made by the infringer as damages

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 civil sanction for patent infringement is therefore a matter of civil delictual liability as governed by Article 1382 (and Article 1383) of the French Civil Code, which states the general and classical principle according to which “Any human deed whatsoever which causes harm to another creates an obligation in the person by who [...]

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

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 that is competent for patent law confirms the principles on damages calculation that have previously been established by the I. Senate for other intellectual property rights.

In practice, the trial judges have to determine the part of the profit that results from the use of the patent by way of estimation according to their free discretion and based on the circumstances of the individual c [...]

Flaschentraeger, Federal Court of Justice (Bundesgerichtshof), 24 July 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 in the product, or other relevant factors for the customer’s purchase decision, e.g. the product’s design, the origin, the trademark, the price or other factors effecting the market opportunities thereof that are independent from the patent, taking into account all of the circumstances of the case.

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A summary of this case will be posted on [...]

Primus v. Roche, Court of Appeal The Hague (Gerechtshof Den Haag), 21 August 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 the amended German part of the patent was held valid by final judgment between the same parties in Germany.

Click here for the full text of this case.

A summary of this case will be posted on http://www.KluwerIPCases.com

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Accounting on infringer’s profit

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 assumed if defendant clearly waives the right to later use the cost positions under discussion to diminish its profit in course of the damage-litigation. This means that defendant is able to terminate an often burdensome discussion on the completeness of the accounting in cases where the amounts in question do not justify at all time and effort of such a discus [...]

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

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 the German courts regarding the calculation methods. Both decisions are favourable for the patentees.

For decades, the calculation method “license analogy” was the most popular in Germany since the drawback of the “infringer’s profit” method was that the infringer was allowed to deduct all costs. The result of this w [...]

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