Defining enrichment payable after infringement


Imre Molnár

In a recent judgment, the Appeal Court of Budapest confirmed the judgment of the Metropolitan Court of Budapest and clarified the meaning and interpretation of the term ‘enrichment’—the compensation awarded to a patentee following a defendant’s infringing business activity.

The plaintiff in a patent infringement lawsuit is entitled to claim damages suffered due to the defendant’s infringement. Establishing the exact level of such damages is complicated and very often requires the plaintiff to disclose sensitive or confidential information during court proceedings. Such data include turnover and profit margin, and the financial impact of the infringing activity. In most cases, plaintiffs hesitate to disclose such sensitive data.

Another major problem arises when there are several defendants and/or other market players in the field of the infringement. In such cases, it is very difficult to prove the actual damages suffered by the plaintiff as a decrease in profit could be the result of competitor activity.

This and other reasons motivate plaintiffs to use another method—the so-called unpaid licence fee model—to establish damages. It is within the normal practice of the court to establish the appropriate licence fee that the defendant would have had to pay to the patentee for the use of the patented technology and to oblige the defendant to pay this unpaid licence fee to the plaintiff as an award for damages suffered during the period of patent infringement.

enrichment, patent infringement