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United Kingdom - Damages for Patent Infringement

In our November 1995 Newsletter (N.S. 186), we noted the decision at first instance in Gerber Garment Technology v. Lectra Systems Limited, which adopted a fairly broad approach to the scope of damages that could be claimed for patent infringement. The decision was appealed and the Court of Appeal has now issued its judgment. Except for one minor point the decision was upheld as summarized below.

1) There is no rule of law limiting damages for infringement of a patent to lost sales of the patented items. The general rule of law applied is that the patentee should be restored to the position that he would have been in had the wrong in question not been perpetrated as long as there was no exclusion of recovery by way of public or social policy.

2) In principle patentees can obtain damages for losses incurred by their subsidiaries.

3) In cases where the patentees lost opportunities to make ancillary sales as a result of the infringement it was proper to seek to average the loss incurred as a result of these lost opportunities.

4) Even if a patent is endorsed as being subject to license of right, damages are still payable on a "full" basis and not merely as a reasonable royalty.


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© Copyright 1997 Ladas & Parry - Posted 7/15/97
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