SINGAPORE Law and Practice Contributed by: Tony Yeo, Meryl Koh, Rozalynne Asmali and Javier Yeo, Drew & Napier LLC
5.3 Discretion to Award Injunctive Relief (Final or Preliminary) Injunctions are an equitable remedy. Conse - quently, the court will have the discretion to decide whether it should award injunctive relief. In practice, once the court finds that there is infringement, the court will readily order a final injunction unless the defendant has given evi - dence that it has already ceased with the alleged infringing activities even before the order was made, such that an injunction is of no use. 5.4 Damages A successful claimant is entitled to damages as compensation for the loss that it suffered due to the infringement. Typically, patent infringe - ment claims are bifurcated, and damages are assessed at a separate inquiry held subsequent to the infringement trial. In a great deal of cases where the patent propri - etor does not have a competing product of its own, the proper measure of damages is a rea - sonable royalty in respect of each infringement committed. If the patent proprietor habitually grants licences at a particular royalty, quantum is easy to estimate. Even if he/she does not, an estimate can be made. Claims to larger damages can be made, on the ground that the patent proprietor has lost profits, or, for example, has had to reduce his/her pric - es. The patent proprietor has to elect whether it intends to claim damages, or loss of profits. It cannot claim both. The onus is on the claimant to prove that his/her lost profit has resulted from the infringing acts and that if those acts had not taken place, he/she would have made the prof - its. If he/she cannot, the reasonable royalty basis will apply. Claims are often made for other dam - ages (for example, loss of sales of related prod -
ucts not covered by the patent, 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 limitation 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- 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 reason - able disbursements 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 reason - able in amount, and any doubts that the court may have as to whether the costs were reason - ably 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 exercising its discretion, the court must have regard to all relevant circumstances, including: • efforts made by a party at amicable resolu - tion; • the complexity of the case and the difficulty or novelty of the questions involved; • the skill, specialised knowledge and respon - sibility 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 con - cluded. Additionally, the court may disallow judgment interest. 5.5 Legal Costs
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