POLAND LAW AND PRACTICE Contributed by: Krystyna Szczepanowska-Kozłowska, Marcin Ziarkowski, Krzysztof Popławski and Kacper Sobolewski, A&O Shearman, A. Pedzich Sp. k.
In practice, the applicability of this measure is fairly limited, and Polish courts rarely use this discretion. While deciding on a PI, the court is always under a general obligation not to place an undue burden on the party subject to injunction. 5.4 Damages General Considerations Two main pecuniary claims can be raised against a patent infringer. First, there is a classic claim for damages where the claimant is required to demonstrate that: • the infringement is attributable to the infringer (it was either intentional or caused by the infringer’s negligence); and • damage was inflicted on the claimant, and that damage is a result of the infringement (there is a so-called ordinary/adequate causal relationship between the two). Both the actual damage (damnum emergens) and hypothetical but highly probable lost profits (lucrum cessans) are subject to compensation. The claimant should demonstrate the value of the damages, which is especially troublesome with respect to lost profits. The claimant may also choose to have the com - pensation calculated as an amount of a hypo - thetical licence fee or other remuneration that would have been due for authorising the infringer to exploit the invention (reasonable royalty). Second, there is a claim to hand over any benefits unlawfully obtained by the infringer (corresponding to the “recovery of profits” as described in Article 13(2) of Directive 2004/48). Therefore, this is not exactly a claim for hypo - thetical profits lost by the patent holder (or by the licensee) but for the infringer’s actual profits
resulting from the unlawful exploitation of the invention. It is not clear, however, to what extent the infringer is allowed to deduct their expenses, ie, whether the claim is limited to the infringer’s net profit or whether they have to hand over liter - ally any benefits, ie, all the income resulting from exploiting the inventions. The claim to hand over unlawfully obtained benefits does not require the claimant to demonstrate damage on their side and does not depend on whether the infringe - ment is attributable to the infringer. The claim for damages and the claim for unlaw - fully obtained benefits are independent and can be raised together. However, the court will likely limit the damages by the amount awarded as unlawfully obtained benefits. Claiming lost profits is usually the least preferred patent infringement claim, as it is exception - ally troublesome from an evidentiary perspec - tive. Claimants would rather claim unlawfully obtained benefits since once the infringer’s business records are secured, tracking how the infringer profited from the infringement is rela - tively easy. Awards The royalty on revenues for units sold is deter - mined on a case-by-case basis, albeit, in legal literature, values between 1% and 10% are usu - ally indicated. Polish law provides no basis for the court to aggravate the damages awarded depending on whether the infringement was intentional or negligent. It has been a subject of controversy whether the statutory interest for default in payment can only accrue from the moment the damages are awarded by the court or from the moment the infringed party issues a call for payment.
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