As I noted a couple of months ago, the German Federal Supreme Court recently issued a decision, the Judgment of May 7, 2024, X ZR 104/22— Verdampfungstrockneranlage, holding that the owner of a German patent may recover compensation for losses suffered outside of Germany, as long as there is an act of infringement within Germany, and a sufficient causal connection between that act and the foreign losses. The decision has now been published in the 16/2024 issue of GRUR (pp. 1201-05), with commentary by Caman Derakhshan at pp. 1205-07. The author states that, in view of this decision and the BGH’s Judgment of Nov. 14, 2023, I ZR 30/21—Polsterumarbeitungsmaschine (discussed here), authorizing awards for springboard convoyed goods and services, the German courts may experience a surge of damages claims; and he notes that both decisions appear to stand for the principle that the patentee is entitled to recover damages for losses caused by a cognizable act of infringement, even if those losses are suffered outside the term or subject matter of protection (as in Polsterumarbeitungsmaschine), or outside the geographical extent of protection (as in Verdampfungstrockneranlage). The author suggests, however, that it may be difficult to untangle the extent of the damages which should be attributed to the domestic conduct, especially where (as in the present case) the domestic conduct is an offer that arguably could have been made outside of Germany; and that, more generally, courts may face difficulties quantifying the appropriate monetary relief. He closes by posing the question whether the BGH’s reasoning might mean that, in the inverse case—in which an offer in a foreign, patent-free country leads to infringing conduct in Germany—the benefit of the foreign offer must be deducted from the domestic damages award, but believes that under the current state of the law this is scarcely conceivable.
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