Industrial Property Law

According to the first method of calculating the harm suffered by the proprietor under Article L. 615-7 of the Intellectual Property Code, the court must take into account the negative economic consequences of the infringement, including lost profits and losses suffered by the injured party (Art. L. 615-7, para. 1, 1° IP Code), the non-material harm caused to the latter (Art. L. 615-7, para. 1, 2° …

Negative economic consequences

According to the first method of calculating the harm suffered by the proprietor under Article L. 615-7 of the Intellectual Property Code, the court must take into account the negative economic consequences of the infringement, including lost profits and losses suffered by the injured party (Art. L. 615-7, para. 1, 1° IP Code), the non-material harm caused to the latter (Art. L. 615-7, para. 1, 2° IP Code) and the profits implemented by the infringer, including the savings in intellectual, material and promotional investments that the latter has made as a result of the infringement (Art. L. 615-7, para. 1, 3° IP Code).

To calculate the amount of damages for harm caused by patent infringement, the court takes into consideration the loss of profits , which corresponds to the profits that would have been generated by the acts of exploitation implemented by the infringer if the plaintiff had carried them out himself or through a license . The lost profit involves evaluating the masse contrefaisante ("infringing mass"), the sales realized by the infringer, and establishing what, within the infringing mass, corresponds to the sales actually lost by the plaintiff . The masse contrefaisante is made up of all products meeting the definition of an infringing product , i.e. those which implement the contents of the patent  without authorization, to the exclusion of products which are merely analogous to the patented product . Also included are elements which cannot be dissociated from the sale of the infringing product, and which form a commercial whole with it . The total infringing mass may not, however, exceed the perimeter defined by the references which gave rise to a judicial finding of infringement . In addition, the court may apply a reduction to the figures obtained if it considers that the plaintiff would not necessarily have benefited from all the orders placed, notably because customers might have preferred less expensive products obtained by different processes .

Even if the patent is not personally exploited by the proprietor, the latter may suffer economic harm as a result of the infringement , which is assessed by reference to the sales represented by the infringing mass  , by taking into account a higher fee than that applied to a licensee . Law No 2007-1544 of 29 October 2007, which enshrines this case law, now gives claimants the option, under Article L. 615-7 of the Intellectual Property Code, of obtaining a lump sum higher than the amount of royalties or fees that would have been due if the infringer had applied for authorization to use the right infringed.

The loss suffered corresponds to “that which exceeds the direct loss of profits or deprivation of royalties” such as the loss of opportunity for the licensee to exploit the patent itself  or for its proprietor to transfer it, the loss of an opportunity to secure a contract currently subject to negotiations , the vulgarization of the patent and of the image of the product covered by the invention  or the depreciation of product prices, when the proprietor has had to limit planned price increases in order to maintain its market share .

“Moral prejudice”, which is cumulative with compensation for material harm , may result in particular from damage to the proprietor's reputation. It is taken into account in calculating the harm, provided it can be proven .

Lastly, the Law of 29 October 2017, transposing the provisions of Article 13 of the Directive of 29 April 2004, introduced the possibility of taking profits into consideration in Article L. 615-7. However, this article specifies that its purpose is not to provide for punitive damages, but to allow compensation to be awarded on an objective basis . The parliamentary proceedings relating to the Law of 29 October 2007 refer to the introduction of “a sui generis compensation scheme adapted to the particular characteristics of intellectual property and the difficulties of accurately assessing harm”. 

CA Paris, 5 October 2011, LawLex202300002110JBJ

Cass. com, 30 January 2001, LawLex202200002712JBJ, stating that IP infringement , which by definition constitutes an infringement of the monopoly conferred by a patent, can in any event be analyzed as the loss of an opportunity to sell the product protected by the patent.

Cass. com., 1 March 1994, LawLex202200003927JBJ.

CA Paris, 12 November 1991, PIBD 1992, 519, III, 194, 519-1-04-92.pdf (inpi.fr), upheld by Cass. com., 1 March 1994, LawLex202200003927JBJ.

Cass. com., 12 May 2015, LawLex202200001313JBJ.

Cass. com., 16 January 1996, LawLex202200002453JBJ, which states that an infringer who is successful in a bid for a contract in which he is in competition with the patent proprietor causes him a loss of opportunity if the infringing product in the bid is the same, even if the bids do not relate to exactly the same mechanisms.

CA Paris, 6 March 2015, LawLex202300005998JBJ.

Cass. com., 23 May 1995, LawLex202200003919JBJ.

Case C-99/15 Christian Liffers, Judgment of 17 March 2016, LawLex201600000607JBJ; CA Paris, 6 March 2015, LawLex202300005998JBJ, which considers that to the lost profit must be added compensation for the harm resulting from the popularization of the patent and the image of the product covered by the invention, in consideration, in particular, of the evolution of technology, which shows that the invention at issue constituted a technological breakthrough.

Cass. com. 23 January 2019, LawLex202300005997JBJ.

Senate Extraordinary Session Report 2006-2007, No 420, 30 et seq.

Cass. com., 21 March 2018, LawLex202300005186JBJ.

Cass. com., 26 May 2009, LawLex202200003539JBJ.

Cass. com., 24 October 2000, LawLex202200003930JBJ, holding that the infringing mass includes the modules, the mechanisms they incorporate, the commands required to operate the whole, and the pallets automatically sold with the modules.

Cass. com., 28 April 1987, LawLex202200003931JBJ.

Cass. com., 23 January 2019, LawLex202300005997JBJ.

Industrial Property Law

412. Negative economic consequences

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Les décisions de justice citées dans ce paragraphe :

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412. Negative economic consequences

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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