Vigand and Raynard on the Cour de Cassation's Profits Decision

In March I blogged about a recent decision of France's Cour de Cassation, Carrera SARL et Texas de France SAS v. Muller et Cie, PIBD No. 1112, III, 120 (Jan. 23, 2019), which held that a court may take into account the defendant's profits attributable to the infringement in a case brought by a nonpracticing patent owner, and that the owner is not limited to a reasonable royalty.  The May 2019 issue of Propriété Industrielle (pp. 21-25) includes the text of the decision, with commentary by Privat Vigand and Jacques Raynard.  Although the authors disagree with the court's conclusion on liability, they approve of the court's decision on damages, noting that an NPE may suffer economic harm (in the form of lost payments from its licensees, or loss of sales on products that compete with or substitute for the infringing product), and that allowing the court to consider the defendant's profit may enable the compensation of these losses.  The authors also note that, while the court indicated that damages for moral prejudice might be appropriate when, for example, the patent owner suffers a loss to its reputation, there was a failure of proof on this heading here.