German case law is continuing to reshape the assessment of damages in patent infringement proceedings. Increasingly, courts are addressing whether and to what extent later revenues and profits may be included in the damages calculation even where they do not result directly from the initial sale of an infringing product.
Recent decisions by the Federal Court of Justice, the Higher Regional Court of Karlsruhe and the Munich Regional Court I show that patent infringement may create commercial opportunities that continue beyond the initial infringing transaction or even beyond the patent term. These so-called “springboard effects” may be relevant in particular where an infringing product creates an installed base, generates demand for consumables, or leads to revenues from maintenance, service contracts, leasing arrangements or post-expiry transactions.
The decisive question is not whether each later transaction is itself an act of infringement. Rather, the key issue is whether there is a sufficient causal and economic nexus to an infringing act committed within the patent’s territorial and temporal scope. German patent damages remain compensatory, not punitive. However, courts are placing greater emphasis on the commercial reality of business models in which the economic value of an infringement may lie in subsequent revenue streams.
This development is particularly relevant for companies with durable goods, platform-based or installed-base business models, and recurring revenues from consumables, maintenance, leasing or services. For patentees, it means that claims for information and rendering of accounts should be framed early on to cover such follow-on revenues. For defendants, causation, realistic non-infringing alternatives and the possible break of the causal chain are becoming increasingly important strategic considerations.
In their article, Dr Christian Meyer and Heike Röder-Hitschke explain the recent case law and show why damages issues are likely to play an increasingly important role in German patent litigation.
