Nieder on the Statute of Limitations for Damages Claims under the Agreement on a Unified Patent Court

Michael Nieder has published an article titled Europäische (Bündel)Patente--Restschadensersatzanspruch adé? ("European (Bundle) Patents--Farewell to Residual Damages Claims?") in the January 2016 issue of Mitteilungen der deutschen Patentanwälte (pp. 1-3).  Here is the abstract (my translation from the German):

Under article 72 of the Agreement on a Unified Patent Court, a claimant cannot file a claim for any type of financial injury more than five years after acquiring knowledge of the circumstances giving rise to the claim.   This article investigates whether, following the entry into force of the Agreement, this cuts back for European (Bundle) Patents the ten-year statute of limitations for underlying residual damages claims, and whether the general three-year statute of limitations can be asserted within the five-year time frame.

The author explains that, under section 199(1) of the German Civil Code, a claim for damages for the infringement of a German patent or the German portion of a European Patent normally must be brought within three years ("Unless another commencement of limitation of is determined, the standard limitation period commences at the end of the year in which . . . 1.  the claim arose and 2.  the obligee obtains knowledge of the circumstances giving rise to the claim and of the identity of the obligor, or would have obtained such knowledge if he had not shown gross negligence").  However, the second sentence of section 141 of the German Patent Act states "Where the person obliged has obtained something as a consequence of the infringement at the expense of the entitled person, section 852 of the German Civil Code shall apply mutatis mutandis," and section 852 states "If by a tort the person liable to pay compensation obtains something at the cost of the injured person, then even after the claim to compensation for the damage arising from a tort is statute-barred he is obliged to make restitution under the provisions on the return of unjust enrichment. This claim is statute-barred ten years after it arises, or, notwithstanding the date on which it arises, thirty years after the date on which the act causing the injury was committed or after the other event that triggered the loss."  The author then notes, however, that once the Agreement on a Unified Patent Court (UPC) enters into force it will apply to all European Patents, not just European Patents with Unitary Effect, and that under article 72 of the UPC Agreement "Without prejudice to Article 24(2) and (3), actions relating to all forms of financial compensation may not be brought more than five years after the date on which the applicant became aware, or had reasonable grounds to become aware, of the last fact justifying the action."  The author considers whether, when the UPC Agreement enters into force, the claimant will have just five years to bring a claim for full compensation for the infringement of the German portion of a European Patent, rather than a three-year period for a damages claim and additional time for a lesser residual damages claim.

I expect to have some more to say about residual damages claims under German law  sometime soon . . . .