TaylorWessing bericht: "The CJEU has been given the opportunity to comment on the calculation of damages in IP cases, in particular on the question whether the Directive 2004/48/EC (the "Enforcement Directive") and the Council Regulation (EC) No. 2100/94 on plant variety rights (the "PVR Regulation") provide for punitive damages.
In proceedings only relating to damages, the newly established second Patent Senate of the Düsseldorf Appeals Court (the 15th Senate) has referred a total of 8 questions to the CJEU concerning the factors relevant in the calculation of damages. Although the case concerns damages regarding the infringement of a plant variety right, the CJEU's answers will also be relevant for other IP rights, including patents, as the questions do not only refer to the PVR Regulation but also to the interpretation of the Enforcement Directive. [...]
The key issue of the referral is whether, when calculating damages according to the licence analogy method, a lump sum for further supplemental damages – a so-called "infringer surcharge" – has to be added pursuant to the PVR Regulation or the Enforcement Directive."
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In proceedings only relating to damages, the newly established second Patent Senate of the Düsseldorf Appeals Court (the 15th Senate) has referred a total of 8 questions to the CJEU concerning the factors relevant in the calculation of damages. Although the case concerns damages regarding the infringement of a plant variety right, the CJEU's answers will also be relevant for other IP rights, including patents, as the questions do not only refer to the PVR Regulation but also to the interpretation of the Enforcement Directive. [...]
The key issue of the referral is whether, when calculating damages according to the licence analogy method, a lump sum for further supplemental damages – a so-called "infringer surcharge" – has to be added pursuant to the PVR Regulation or the Enforcement Directive."
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