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Patent Law
: Philip Brooks’ Patent Infringement UpdatesExemplary Damages/Willful Infringement ? A German Perspective
By Philip Brooks
The following is excerpted from a November 4, 2005 presentation by Dr. Frank-Erich Hufnagel, LLM of Freshfields Bruckhaus Deringer:
Damage Calculation in German Law
- No subjective element in damage calculation: A willful infringer does not pay more damages
-> Not an attractive option for patentee in practice
Damages = Hypothetical wealth without infringement
- Actual Wealth with infringement
-Hypothetical damage where patent holder was never willing to license?
-Non-financial or unquantifiable damage (e.g. to business/goods reputation)?
-No damage because patent could have been circumvented?
-Burden of proof upon patentee (need to disclose own profit)
Full post as published by Philip Brooks’ Patent Infringement Updates on July 28, 2008 (boomark / email).
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