Friday, October 2, 2020

French Court Awards Record Damages Judgment

The case is Eli Lilly v. Fresenius Kabi, Tribunal Judiciare de Paris, 11 Sept. 2020, Docket No. 17/10421, and the award comes to €28,000,000 Pierre Véron recently published a post on the decision EPLaw, with links to his more extended commentary and copies of the judgment in the original French and in English translation.  As he points out, this is one of many European decisions involving Lilly's patents on the use of pemetrexed disodium for treatment of lung cancer.   In this particular case, the court found the patent in suit valid and infringed.  To understand the full context of the decision, including a comparison of the various European judgments involving pemetrexed, read M. Véron's commentary.  Focusing on the damages issues exclusively, I'll note simply that the court provisionally awarded Eli Lilly €8,000,000 as a reasonable royalty, which includes a 25% increase over the normal licensing fee.  (As I have noted previously, courts in France sometimes do this because the defendant avoids some of the risk that a real-world licensee would bear.  See my book pp. 269-70.)  In addition, the court awards co-plaintiff Lilly France, the distributor of Lilly's drug in France, €20,000,000 in lost profits.

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