SINGAPORE Law and Practice Contributed by: Tony Yeo, Meryl Koh, Rozalynne Asmali and Javier Yeo, Drew & Napier LLC
Claims to larger damages can be made, on the ground that the patent proprietor has lost profits, or, for exam ‑ ple, has had to reduce their prices. The patent proprie ‑ tor must elect whether it intends to claim damages, or loss of profits. It cannot claim both. The onus is on the claimant to prove that their lost profit has resulted from the infringing acts and that if those acts had not taken place, they would have made the profits. If they cannot, the reasonable royalty basis will apply. Claims are often made for other damages (for example, loss of sales of related products not covered by the pat ‑ ent, or loss of orders of spare parts or loss of service contracts). Damages/loss of profits will be calculated from the date of when the infringing activities occur and when the patent is valid and in force, subject to the limita ‑ tion period of six years. There will be interest fixed at 5.33% per annum. This interest is determined and fixed by the court for all post-judgment interest. 5.5 Legal Costs A successful party will be able to recover about 30% to 40% of its legal costs from the losing party and 100% of court filing fees and reasonable disburse ‑ ments from the other side. These costs are generally awarded on a standard basis (ie, the winning party will be able to recover costs that were reasonably incurred and are reasonable in amount, and any doubts that the court may have as to whether the costs were rea ‑ sonably incurred or were reasonable in amount shall be resolved in favour of the paying party). Costs are awarded at the discretion of the court, and in exercis ‑ ing its discretion, the court must have regard to all relevant circumstances, including: • efforts made by a party at amicable resolution; • the complexity of the case and the difficulty or novelty of the questions involved; • the skill, specialised knowledge and responsibility required of, and the time and labour expended by, the solicitor; • the urgency and importance of the action to the parties; • the number of solicitors involved in the case for each party; • the conduct of the parties; • the principle of proportionality; and
• the stage at which the proceedings were conclud ‑ ed. Additionally, the court may disallow or reduce a successful party’s costs or order that party to pay costs if that party: (a) has failed to establish any claim or issue which that party has raised in any proceedings, thereby unnecessarily increasing the amount of time taken, the costs or the complexity of the proceedings; (b) has done or omitted to do anything unreason ‑ ably; (c) has not discharged its duty to consider amica ‑ ble resolution of the dispute or to make an offer of amicable resolution; or (d) has failed to comply with any order of court, any relevant pre action protocol or any practice direction. In appropriate cases, the court also has the discretion to order costs to be assessed on an indemnity basis (ie, the winning party will be able to recover all costs except those that have been unreasonably incurred or are unreasonable in amount, and any doubts which the court may have as to whether the costs were rea ‑ sonably incurred or were reasonable in amount shall be resolved in favour of the receiving party). A defend ‑ ant may apply for a security for costs (SFC) order, which requires the claimant to put up a certain amount of money as security/guarantee for the defendant’s legal costs in the event the claimant loses their case. For the avoidance of doubt, the legal costs referred to here are Party-and-Party Costs (“P&P Costs”). Usu ‑ ally, a losing party must pay the winning party’s P&P Costs. P&P Costs are not the legal fees a party pays to their lawyer, which are called Solicitor-and-Client Costs (“S&C Costs”). P&P Costs are not meant to compensate the winning party for their S&C Costs and are generally far lower than S&C Costs. However, P&P Costs still go some way towards the winning party recouping its expenses. SFC applications are usually granted when the court is persuaded that the defend ‑ ant will have difficulty obtaining P&P Costs from the claimant if the claimant’s claim fails. The grounds on which an SFC application can be sought is set out in Order 9 Rule 12 of the ROC 2021: • where the claimant is ordinarily resident out of the jurisdiction;
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