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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

• Damages as difference calculation, includes lost profit (§ 252 BGB)

• ?Simple? Equation:

                        Damages =  Hypothetical wealth without infringement
                                       - Actual Wealth with infringement

• Problem: Hypothesis is complicated and burdensome

 -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)

   -> Not an attractive option for patentee in practice

See the full presentation here.

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