Israeli Supreme Court Discusses Damages in a Patent Case
by Jonathan Agmon
The Israeli Supreme Court recently handed down a decision in Gideon Rotenberg v. Elgo Irrigation Ltd. et. al. and addressed section 183 to the Israeli Patent Act. Section 183 lists the remedies the plaintiff is entitled to should his suit succeed.
Section 183(a) provides that a plaintiff is entitled to an injunction and damages.
Section 183(b) provides that when the court addresses the issue of damages, it will take into account the infringing act of the defendant, and the condition of the plaintiff as a result of the infringement, and it may take into account, among other things, the following: (1) the direct damages caused to the plaintiff; (2) the extent of the infringement; (3) the profits the infringers gained from the acts of infringement; (4) reasonable royalties the infringer would have had to pay should a license to exploit the patent would have been granted to him at the infringement extent.
The Supreme Court reiterated previous decisions and stated that the applicable legal theories to be used are those of Tort law. And that the basic principle of section 183 is that of restitution – placing the plaintiff in a position as if the patent has not been infringed. But, separate from principles of Tort law, the Court, when deciding the damages measure, may take into account the infringing acts and the list of tests in section 183(b). The Supreme Court stated that each court should determine the damages according to the relevant test which would best serve the interest of restitution and would also take into account the profits and expenses of the infringer.
The Court also stated that damage calculations should be supported by an expert opinion.