As I make my way through a backlog of European I.P. journals, I will probably blog more than once over the coming weeks about articles published in the February 2021 issue of GRUR, all of which is devoted to a Festschrift for Judge Peter Meier-Beck on the occasion of his 65th birthday. Several articles address the topic of patent remedies and/or FRAND issues. I'll start today with an article by Pierre Véron, titled What Price Crime? A European Hit Parade of Patent Infringement Damages, 2021 GRUR 392. (The French version of the article, titled Le prix du crime: palmarès européeen des dommages-intérêts pour contrefaçon de brevet d’invention, was just recently published in the July-August issue of Propriétê industrielle, pp. 7-13.) Here is the abstract, from the English-language version:
A survey was conducted to identify judgments granting damages for patent infringement in the six most active European countries in patent litigation (Germany, Spain, France, Italy, the Netherlands, and the United Kingdom) between 2000 and 2019. The total number of decisions granting damages was found to be 574 and the total amount granted 198.718.636 Euro: France (380 decisions, 113.934.191 Euro), Spain (79 decisions, 45.560.121 Euro), Italy (76 decisions, 19.191.968 Euro), Germany (29 decisions, 13.578.101 Euro), the Netherlands (6 decisions, 4.833.585 Euro) and the United Kingdom (4 decisions, 1.620.669 Euro). The highest amount ever granted by a court in Europe was granted by the court of Lyon (25.320.946 Euro in a textile case in 2016). The 10th largest amount was granted by the court of Barcelona (3.418.745 Euro in a cooking case in 2013).
(As the more recently-published French version notes in footnote 4, however, in September 2020--outside the range of cases discussed in the article--the Paris court of first instance awarded Eli Lilly €28,000,000, which would be the highest patent damages award ever in France. For previous discussion, see here.) The data on which the article is based come from Darts-ip. Moreover, as the article notes, "only the judgments granting patent infringement damages handed down in first instances were taken into account, excluding the decisions given by appellate courts; as a result, some of the decisions in the list do not reflect the outcome of the case," as is the case for example for the €25,320,946 judgment mentioned in the abstract, which was reversed on appeal. The article also notes that "not all the judgments granted patent infringement damages are available for data providers." The author provides some possible reasons "France, dealing with less patent cases than Germany . . . issues ten times more judgments about damages," and why the number of damages judgments in the Netherlands and the U.K. are so small. Among these are the lower stakes of proceeding with a damages trial if the infringement is quickly enjoined (as it often is in the Netherlands), the cost of proceeding further, and the parties' ability "to anticipate what the court's decision on damages will be" in Germany. M. Véron also provides a table and a chart comparing the top U.S. patent damages awards with the top awards in Europe. As the author puts it--and you would probably guess--"European courts and United States courts stand on different continents . . . when patent damages are concerned!" Of course, many of the U.S. judgments are reversed on appeal too. For discussion of this phenomenon in my 2013 book Comparative Patent Remedies, based in part on M. Véron's earlier work, see pages i, 7, 259-61.