Damages in patent litigation in Germany and before the UPC

In this paper, an overview about the German system of awarding damages is given together with a short outlook on the possible practice of the UPC. The German system is based on a non-punitive damages concept where the damages are intended to set the patentee as if the infringement did not happen. The patentee can choose between three different ways to calculate the damages, i.e. a) Recovery of the loss of profits of the patentee, b) Recovery of the profit of the infinger, and c) Licence analogy with the latter two being the most prominent since the first requires to give inside information to the court and/or the other side. Basis for this regime is both German juridical history as well as the EU enforcement directive 2004/48/EU The UPC system is very likely to be very similar, since the EU-Enforcement directive is also applicable here.