The object of damages is to compensate for loss or injury. The general rule for ‘economic’ torts is that the measure is that sum of money which will put the injured party in the same position as he would have been in if he had not sustained the wrong.
Lord Wilberforce identified the normal categories in patent cases. They are the profit, or the royalty, which was or would have been achieved (e.g. where the defendant manufactures, or licences the manufacture of, goods covered by the patent), and the licence fee which would reasonably have been charged (e.g. where it is not possible to assess the level of profit). He went on to say: ‘Where a wrongdoer has failed to pay money which he should have paid, justice, in principle, requires that he should pay interest over the period for which he has withheld the money.’
. . And ‘There are two essential principles in valuing the claim: first, that the plaintiffs have the burden of proving their loss: second, that the defendants being wrongdoers, damages should be liberally assessed but that the object is to compensate the plaintiffs and not to punish the defendants.’
Lord Salmon said that interest: ‘is awarded because it is only just that the person who has been deprived of the use of the money due to him should be paid interest on that money for the period during which he was deprived of its enjoyment. . . [The defendants] enjoyed the use of the money during the whole of this time and in law it is deemed to have been due to them from the beginning of that period.’
Lord Wilberforce, Lord Salmon
[1976] RPC 197, [1975] 1 WLR 819, [1975] 2 All ER 173, [1975] FSR 273
England and Wales
Citing:
Appeal from – General Tire and Rubber Company v Firestone Tyre and Rubber Company Ltd CA 1971
Degree of Novelty Required before patent grant
The court set out the test for novelty required to be established before a patent could properly be granted: ‘To determine whether a patentee’s claim has been anticipated by an earlier publication it is necessary to compare the earlier publication . .
Approved – Meters Limited v Metropolitan Gas Meters Limited CA 1911
The defendant having been found to have infringed the defendants patents, now appealed against the method of calculation of damages.
Held: The appeal failed. Fletcher Moulton LJ emphasised the discretion given to a judge, and said: ‘But I am . .
Cited by:
Cited – Dyson Appliances Limited v Hoover Limited CA 4-Oct-2001
Hoover appealed a finding that Dyson’s patent was valid and infringed. They asserted the patent was not novel in the light of a US patent, and even so was obvious. One test was whether an application of the claimed patent would inevitably infringe . .
Cited – Coflexip Sacoflexip Stena Offshore Limited v Stolt Offshore Limitedstolt Offshore Limited Stolt Offshore A/S CA 13-Mar-2003
In proceedings already heard the defendant had been found liable for patent infringement, and damages remained to be assessed. They claimed for loss of profits and royalties, and for damages through dilution of the market. The claimants said that to . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and others ChD 9-Oct-2008
The claimant had alleged that the defendant was producing generic drugs which infringed its rights in a new drug. The patentee had given a cross-undertaking in damages, but the patent was later ruled invalid. The court had to assess the damages to . .
Cited – BP Exploration Co (Libya) Ltd v Hunt (No 2) 1979
The contract between the parties relating to an oil concession in Libya had been frustrated by the nationalisation of the field.
Held: The court considered the setting of damages where the plaintiff had delayed in notifying the defendant of . .
Cited – Sycamore Bidco Ltd v Breslin and Another ChD 14-Feb-2013
The court considered whether it was correct to award interest on the sum of damages for the period before as well as after judgment, and if so, from what date and at what rate of interest.. . .
Cited – 32Red Plc v WHG (International) Ltd and Others ChD 12-Apr-2013
The court had found trade mark infringement by the defendant and now considered the quantification of damages. . .
Cited – Vestergaard Frandsen A/S (Now Called Mvf 3Aps) v Bestnet Europe Ltd and Others ChD 3-Oct-2014
The court had already found that the defendants had misused the confidential information of the claimant being secret information used in the manufacture of long lasting insecticidal mosquito bed nets mainly sold in areas of the world where malaria . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property, Damages
Leading Case
Updated: 02 November 2021; Ref: scu.179761
