Axel Walz has published a paper in the June 2016 issue of GRUR Int (pp. 513-30) titled Schadensersatz und Einheitspatentsystem: Rechtliche Grundlagen und Systematik des Schadensersatzanspruchs im künftigen Einheitspatentsystem ("Damages and Unitary Patent System: Legal Principles and Schematic of Damages Claims in the Future Unitary Patent System"). Here is the abstract (my translation):
Up to now, discussions of the new European Unitary Patent System have focused in large part on questions concerning claims for injunctive relief. While German courts up to now have assumed it self-evident that claims for injunctive relief are subject to the principle of reasonableness, in practice there was and is established an almost automatic coupling of patent infringement and claims for injunctions. In contrast to the question whether and to what extent this practice must change under the future European Unitary Patent System, the discussion concerning possible damages claims leads but a shadow existence. The present article therefore takes up the questions of which conditions must be satisfied for damages claims within the framework of the future Unitary Patent system, and what legal principles are relevant in this context. In addition, deviations from what has been German practice to date are specially highlighted.
The article notes, among other things, that article 68(4) of the Agreement on a Unified Patent Court appears to permit a court to award the infringer's profits without evidence that the infringer knew or should have known of the patent (in contrast to German law). Towards the end of the article, the author also questions whether the Agreement contemplates anything comparable to the German practice of permitting a court to award damages in its free discretion (nach freier Überzeugung) under article 287 of the German Civil Procedure Code (see my recent article on Patent Damages Heuristics at p.20 & n.76 for brief discussion). My one critique of the article is that it doesn't take account of the change made in the 17th and 18th drafts of the UPC Rules of Procedure, which in a departure from the 16th draft have eliminated the provision (article 118(2)) that would have allowed the court to award damages in lieu of injunctive relief (see discussion on this blog here). Overall, though, a good read.
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