PATENT – The Italian Supreme Court on the compensation of damages for dilution of the patent value due to the infringement

Newsletter n. 91 – December 2023

PATENT

The Italian Supreme Court on the compensation of damages for dilution of the patent value due to the infringement

On 9 November 2023 the Italian Supreme Court issued its decision No. 31170 (“Decision”) on the compensation of the damages resulting from patent infringement. With the Decision, the Supreme Court clarifies that damages for the loss of value of a patent due to an infringement may be compensated and determined on the basis of the diminished profitability of the patent, calculated having regard to the amount of royalties not received by the patentee in a given period of time as a result of the infringement. However, the Supreme Court highlights that the above principles shall not lead to an overcompensation. Therefore, the patent dilution shall not be added to the loss of profits, since the two values describe, albeit in different ways, the same phenomenon, i.e. the fact that the patent has not generated the same profits which it would have generated in the absence of the infringement in a given period. Moreover, the patent dilution shall not be cumulated with the restitution of profits.