Industrial Property Law

Infringement of a patent owner's rights, as defined by Articles L. 613-3 to L. 613-6 of the Intellectual Property Code, constitutes an infringement which engages the civil liability of the infringer (Art. L. 615-1 IP Code).

Damages for harm caused by counterfeiting are governed by Article L. 615-7 of the Intellectual Property Code, which sets out the criteria that the court must take into consideration when determining the amount of damages that may be awarded to the victim. The court has two alternative methods of calculation. The first takes account of the patent proprietor's loss of earnings, his or her moral harm (préjudice moral) and the profits unjustly implemented by the infringer (para. 1). The second, introduced by Law No 2007-1544 of 29 October 2007 to facilitate the assessment of harm, provides for the fixing of a lump sum, which must be greater than the amount of the royalties or fees that would have been due if the infringer had applied for authorization to exploit the invention (para. 2). The Law of 11 March 2014 supplemented the system in order to increase the amount of damages awarded and compel courts to detail their calculation for each of the heads of harm separately, without being content with an arbitrary or blanket assessment. Beyond this, compensation for harm resulting from infringement is governed by the rules of ordinary civil law.

Proof of the extent of the harm has been greatly facilitated since the Law of 29 October 2007, which, by introducing the right of information in Article L. 615-5-2 of the Intellectual Property Code, enables the patent proprietor who is the victim of infringement to ask the court hearing the case to obtain documents or information on the extent of the infringement if necessary subject to penalties for non compliance. 

Trial courts have full discretion to set the basis for assessing damages , evaluate their extent  and determine the amount of compensation due , and are therefore neither bound by the expert's opinion  nor obliged to give a detailed explanation of the parties' arguments .

Cass. com., 21 March 2018, LawLex202300005186JBJ.

Cass. com., 28 April 1987, LawLex202200003931JBJ; 12 May 2015, LawLex202200001313JBJ, ruling on non-pecuniary (moral) harm.

Cass. com. 19 February 1991, LawLex202300005187JBJ, which states that the court can impose at its discretion a higher royalty rate on infringers than on co-contractors chosen by the patent owner.

Cass. com., 28 April 1987, LawLex202200003931JBJ.

410. Assessment of harm