Contributed By Linklaters
See 2.1 Actions Available Against Infringement, above for the various procedures that may be launched in an alleged infringement of patent rights.
The person entitled to launch court action (see 3.1 Necessary Parties to an Action for Infringement) disposes of several remedies in the case of patent infringement. He or she may claim injunctive relief in order to ensure that the infringer ceases and desists from (further) engaging in infringing activities (often combined with a claim to impose a penalty payment in case of non-compliance with the injunction), and may also claim damages (except in cease-and-desist proceedings) and reimbursement of lawyers’ and court fees (see 8.3 Responsibility for Paying Costs of Litigation).
The court may also order certain additional or ancillary remedies, namely recall, removal or destruction of the infringing products, obligation to disclose the origin and distribution channels of the products, publication of the decision (or a summary thereof) and release of the products or descriptive seizure in the case of infringement on a commercial scale.
In cases of bad faith, the court may order the handover of profits derived from the infringing activities. It may also order the forfeiture of the products that have been manufactured in violation of the patent rights and of the tools that have been used for manufacturing the same. In criminal cases only, the court may also fully or partially close an establishment or issue a prohibition to exercise certain commercial activities.
Once infringement or bad faith have respectively been established, the court has little or no discretionary margin to order the claimed remedies (eg, injunctive relief), but may assess the efficacy and proportionality of the claimed remedies, particularly with respect to certain ancillary remedies (eg, publication measures).
See 8.3 Responsibility for Paying Costs of Litigation, on the reimbursement of attorney and court fees.
Apart from the reimbursement of attorney and court fees, in some cases the prevailing defendant may also claim compensation for reckless and vexatious proceedings (based on Article 1382 of the Civil Code).
All available remedies have been described in 6.1 Remedies for the Patentee.
Following a recent change to the Judicial Code, decisions at first instance are generally enforceable notwithstanding appeal. Lodging an appeal will no longer automatically stay the enforcement of the appealed decision. The patent-holder may therefore be allowed to (continue to) enforce the injunction obtained at first instance pending an appeal, but may in some cases be required to provide a guarantee in order to compensate for damages that the alleged infringer would incur if the patent were to be declared invalid in appeal proceedings.