Palacci and Szafarczyk on Ten Years of Patent Damages Decisions in France

Jérémie Palacci and Joséphine Szafarczyk have published a paper titled La fixation des dommages et intérêts en matière de brevets depuis la loi de 2007 de lutte contre la contrefaçon:  10 ans d’application (“Determining Patent Damages After the 2007 Anti-Infringement Law:  10 Years of Application”), in the February 2018 issue of Propriété Industrielle (pp. 10-12).  Here is the abstract (my translation):

Supplementing the Laws on Intellectual Property of February 4, 1994, March 18, 2003, and March 9, 2004, Law No. 2007-1544 of October 29, 2007 implemented European Directive 2004/48/CE of April 29, 2004.  The result of ambitious work, this law aimed to strengthen the fight against infringement and to more justly compensate the victims.  The legislature addressed itself in particular to drafting a new article L. 615-7 of the I.P. Code concerning the assessment of damages.

(For previous discussion on this blog of L. 615-7 as enacted in 2007, and as further amended in 2014, see, e.g., here.)  The authors note, among other things, that L. 615-7 made an important break with previous law in expressly authorizing courts to take into account the benefits realized by the infringement.  In addition, they discuss their review of the 94 decisions (first instance, second instance, and Cour de cassation) on damages from January 1, 2008 to June 30, 2017, and provide a breakdown of those in which (for example) the court required expert assistance (nearly a quarter), or in which lost profits or reasonable royalties were awarded, or in which the grounds for the award were unclear.  One interesting note is that there was a “non-negligible number of decisions” in which the court awarded damages for moral prejudice (3) or for harm to monopoly position (7) to make up for a lesser recovery for economic harm.  The concept of moral prejudice can mean different things in different countries (see, e.g., here and here), and as others have noted before French courts sometimes appear to award such damages more as a means of “rounding up” than (e.g.) to compensate for loss of reputation.  (I’m hoping to devote some time this summer to starting work on an article on moral prejudice in IP law among the major jurisdictions.)  The authors conclude that since 2007, compensation awarded to patent plaintiffs in France has expanded, and that fewer and fewer decisions render awards without clear explanation.  Finally, they argue that France should make it easier for courts to review confidential documents which parties are often reluctant to share, so that damages awards can be more accurate.