Patent Damages in France

Thanks to a post on LinkedIn by Pierre-Aimé Despalle, I recently became aware of a study published on June 27, 2016 by Antoine Féliers titled Montants alloués par les juridictions en contentieux de brevets (“Damages Awarded by the Jurisdictions in Patent Disputes”), available here.  The study reports the average damages awarded under article 615-7 of the French I.P. Code by the Tribunal de grande instance de Paris (TGI Paris), which now hears all patent infringement actions in France, as well as by the Cour d’appel de Paris and the Cour de cassation.   It also reports average awards of costs under article 700 of the Civil Procedure Code.  The study made use of the Darts-IP Database.

(For the current text of article 615-7, which was enacted in March 2014, and my translation thereof, see here.  For the immediately preceding version, see here.  As for article 700,  this document explains that “The French Courts make two forms of orders for costs. The first one is known as an order for ‘dépens’ article 695 of the NCPC (new code of the Civil procedure) . . . , which is often translated as ‘costs’. The ‘Dépens’ cover a variety of costs. . . .  A party who successfully brings proceedings in France cannot expect to recover anything like the sums effectively spent on the litigation but will usually recover simply a contribution to its real costs spent (Article 700 of the NCPC (new code of the Civil procedure)) other than the ‘Dépens’ (ie Articles 695 and 696 of the NCPC (new code of the Civil procedure).”)  

M.  Féliers reports, among other matters, the average damages awarded by the TGI Paris from 2000-15.  He states that, although the average peaked at about €900,000 in 2009 (due to single decision in which the court awarded over €9 million), no general tendency can be drawn from the data.  The average in 2015 appears to be well under €100,000.  The number of cases awarding damages also is pretty small:  although there were 139 patent cases filed in 2015, only 12 resulted in a damages award under article 615-7.  Average awards under article 700 also tended to be small, averaging less than €20,000 in 2015.  (Again the peak was in 2009, when the court awarded over €300,000 in costs in two cases.)  The study also compares average awards in France with awards in Germany (which the author reports as frequently exceeding €500,000), and with the U.S. average for 2012-15, which the author reports as €49.85 million.  (That may be correct, though the damages studies published in recent years by PricewaterhouseCoopers and by Lex Machina report medians, not averages, which makes sense given that a few outliers can really distort one’s perception if you only report averages.  According to PwC, the median U.S. award in 2015 was $10.2 million, see post here.)

For previous discussion on this blog of a French damages study by Béatrice Dumont, see here.  For brief discussion of the Dumont and other studies of damages in France, see this paper I coauthored with John Golden.