When calculating the damages from a patent infringement, the patent proprietor can, inter alia, claim the profit made by the infringer. The fact that this can be particularly lucrative for the patent proprietor is shown by the new decision "Upholstery conversion machine" by the German Federal Court of Justice:
In general, all profits that are causally related to the infringement of the patent must be taken into account when calculating the infringer's profit. This also includes profits from additional transactions such as the supply of consumables for use in the infringing devices or profits from leasing or maintenance contracts concluded for these devices. This also applies if these profits only accrue after the end of the term of the patent, and even if the underlying contracts were only concluded after the expiry of the patent.
The right to information and accounting also extends to such additional transactions.
Furthermore, these principles also apply to claims for damages in which the infringer's profit is deemed to have been obtained through the infringement at the expense of the patent proprietor and must be surrendered (so-called "residual damages") and which are subject to a significantly longer statutory period of limitation, namely ten instead of three years.
