In a recent judgment from the Athens Full Bench Court of First Instance, Commercial Law Division, the court awarded €69,400 as patent infringement damages based on a royalty of 7.5%. The actual amount due is almost triple in view of interest due, dating back to the time the action was filed. By the same decision €6,000 was awarded as non-pecuniary damages.
The case involved an infringement action filed on behalf of Merck & Co against a Greek generics company, regarding Merck's Prinivil product (lisinopril).
Merck & Co brought the suit against a Greek generics company claiming infringement of its patents related to a process for the production of lisinorpril. The Greek company objected to the validity of the patents and claimed to have been using a different process for its lisinopril products which was not infringing and was patented by a Spanish generic API producer. The court, after examining the reports of several experts from both parties, rejected the defendant's claims and found that their generic products were infringing the claimant's patents.
The court based its calculation of damages on a circular from the Ministry of Finance which set limits to the export of Greek currency, providing that the amount of royalties payable for pharmaceutical products in 1994 from Greek companies to foreign companies should range between 2% and 7.5% and set the royalties to 7.5%. Furthermore the court found that Merck & Co had suffered non-pecuniary loss by the illegal conduct of the defendant and awarded further damages. Legal fees were also awarded to Merck & Co.
While one may argue that this way of calculating royalties is arbitrary, the decision, which is immediately enforceable in part, is important for Greek legal practice because it provides at least one clear basis for calculating damages in patent infringement cases, resolving an issue which can be very difficult and on which the case law is rather poor.
Patrinos & Kilimiris acted for Merck & Co in this matter.
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