Tuesday, June 2, 2020

Danish Court Ruling on Attorneys' Fees

Victor Henum and Anders Valentin have published a paper titled Decision from the Eastern High Court Changes Danish Practice Regarding Assessment of Recoverable Legal Costs in Patents and IP Cases, 42 E.I.P.R. 196 (2020).  Here is the abstract:
With its decision of 29 August 2019, the Eastern High Court of Denmark brings the Danish practice on assessing legal costs in patent and IP cases into conformity with EU law in the area. The decision is expected to substantially change the court’s former conservative practice of awarding costs in patent and IP cases.
The Danish court's decision is intended to comply with the ruling of the CJEU in UnitedVideo Properties, Inc v Telenet NV, C-57/15, which held that article 14 of the Intellectual Property Rights Enforcement Directive requires that awards of attorney's fees should compensate "a significant and appropriate part of the reasonable costs" actually incurred, and that technical adviser fees are compensable if they are "directly and closely linked to" the judicial proceeding at issue.  (For my previous posts on this case, see here, here, and here.)  Messrs. Henum and Valentin conclude their article by stating that the Danish:
Court’s judgment . . . eases the criteria for the instances for which a successful party can have its costs for expert assistance covered. This means that successful parties can now presumably expect to have a larger part of their costs covered in the future. However, it is still unclear whether costs for patent agents’ assistance as legal counsels are recoverable, since the court solely states that expenses for patent agents are recoverable with regard to their assistance with expert statements—no other assistance was reported in this case.

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