The compensation to which a successful claimant is entitled in respect of patent or unregistered design right infringement may take the form of damages or an account of the other party’s profits.
To date, damages awarded to a manufacturer claimant in respect of patent and unregistered design right infringement have primarily taken the form of:
- lost profit on sales of the patented product that the claimant would have made ‘but for’ the defendant’s action;
- lost profit on sales of the patented product where the infringement forced the claimant to reduce their prices; and
- a notional royalty on any sales of the patented product made by the defendant which the claimant would not have made.
It is established law that damages are compensatory rather than punitive and that the aim is, as far as is possible, to return the claimant to their original position as if the tort had not occurred.
The information contained in this alert is provided for informational purposes only and does not represent legal advice. Neither the APLF nor the author intends to create an attorney client relationship by providing this information to you through this message.
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