Quote outlining the costs associated with sanctions for infringement in FRANCE

In France, 1) infringement compensations have to repair the entire damage, which is sustained by the patentee, but theoreticaly not more than this damage. This damage is close to what the patentee himself is assumed to have lost because of the infringement. 2) The patentee has also a right against irreversible advantage won by the infringer thanks to the infringement. 3) Finally the patentee has a right on the costs of the action at law, which have to be paid by the infringer.

1) Some elements have to be distinguished to determine the amount of these infringement compensations :
First of all, the ''counterfeited quantity'' has to be evaluated.
Then, the sustained damage can be calculated. This last depends on
- the real exploitation of the patented products (or process) by the patentee,
- the capability of the patentee to manufacture and sell all the products infringed by the infringer.
For the evaluation of the counterfeited quantity, every kind of infringing products, or more generally infringing actions, have to be counted.

For the question of real exploitation, the patentee is deemed to exploit his patent when he is himself manufacturing the products in his country (which can be other than France) and when he has corresponding selling facilities in France (Cassation Commerciale, January 24th, 1978). It could now be added that the corresponding selling facilities of the patentee could locate elsewhere within the European Economic Community.
However, the patentee could be said as not capable of manufacturing and selling all the products manufactured by the infringer, namely for reasons of industrial or commercial capability of the patentee (Cour de Paris, July 1st, 1986), for reasons of commercial interest of the solution of the patent with regard to alternative solutions (Cour de Paris, January 31th, 1985), or for reasons pertaining to the personality of the infringer and or of the patentee (Cour de Lyon, February 8th, 1990). Thus, a share is made between the products that the patentee would be deemed not to be able to manufacture, for which he is to receive an indemnification fee, and those products that he would be deemed to be able to manufacture, for which he is to receive a compensation on loss benefices.
Should the patentee not manufacture himself the patented products, he would have a right to receive only the indemnification fee on all the infringing products.

Indemnification fee It has to be recall that this indemnification fee concerns uniquely the infringed products that the patentee would be deemed as not manufacturing by himself. For these products, the patentee is deemed to have a right to a license fee. This occurs even if the patentee does not at all exploit the object of his patent. The license fee is at the highest rate available in the field, starting from the fact that the infringer is in a position where he is not able to discuss any point of the license (Cour de Paris, November 12th, 1991 and Cassation Commerciale, March 1st, 1994).
Fundamentally, the license is evaluated with regards to habits in the field. In one case, the amount of such a "license" has reached 20% of the entire infringing products (Cour de Paris, November 14th, 1984). It depends on the inventive step of the invention (but this is discussed), the commercial interest of the patent, the presence in France (in Europe?) of an exclusive importator, the contribution of the invention within the infringing product. An awarded "weak" license is 2% (Cour de Paris, Mai 22, 1986). A "not excessive" awarded license is 5% (Cour de Paris, January 31, 1984).

Compensation on loss benefices This compensation concerns the products, sold by the infringer, which the patentee is deemed to be able to sell. The burden of the proof for the number of these last products lays on the patentee (this also is discussed). For these last products (which the patentee is deemed to be able to sell), the per capita benefices of the patentee (not the infringer) are evaluated. The question to be solved is the value of this benefice.
The value of this benefice depends on the number of infringing products with regard to the number of products that the patentee sells on his own side. Should this number of infringing products be relatively weak, a brut margin of the income within the patentee is taken into account. Should this number of infringing products be relatively significant, general expenses should also be considered, and only a net margin would be taken into account. This net margin is less than a brut margin.

2) The patentee must prove the right against irreversible advantage won by the infringer. This right may be proved by the fact that the infringer has manufactured at a lower cost due to the absence of a license and took an advantage on the market due to his low price (Cour de Paris, November 14th, 1984). This is also encountered when the patentee looked for selling or licensing his patent, and was prevented to do so by the existence of the infringement.

3) The cost of the trial is weak. The awarded costs for the attorney of the adverse party are generally weak too. This is now incresing.