The Higher Regional Court Frankfurt decides about damage calculation on the basis of infringer’s profit

The Higher Regional Court Frankfurt concluded that after patent infringement the complete infringers profit can only be claimed in exceptional cases. The complete infringers profit can only be attributed to the patent infringement if the subject matter of the protected invention is a completely new item. In the usual case the subject matter of the protected invention only concerns the amelioration of details of known items. In that case, the question has to be answered to what extent the forbidden use of the patent has an impact on the customer’s decision to buy the infringing item.