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 that constitute an important defense against enforcements of intellectual property rights would be contrary to Article 6 ECHR.
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[...]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.
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[...]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 date of the Spanish translation in the Spanish Patent Office publication periodical.
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[...]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 new proceedings which ultimately gave rise to a duplication of debates that could have been resolved in one shot during the declaratory phase.
To put an end to the abuse of this system, the new Spanish Civil Procedure Act approved in the year 2000 required damages to be determined during the declaratory phase of the proc [...]
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 [...]
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 [...]
