Erstatningsudmåling i patentkrænkelsessager: Muligheden for indførelse af pønale kompensationsbestemmelser i dansk ret.

Abstrakt

The focus on patents by the business community is increasing with a tremendous pace. The number of patent applications and consequently infringement cases has exploded internationally in recent years. The subject of this thesis concerns the current compensation rules in Danish patent law and whether these are socially optimal. It is often stated in the legal literature that the level of paid compensations in patent infringement cases in Denmark is low. Firstly the thesis attempts to demonstrate whether this is a plausible assumption by examining the published (UfR) patent infringement cases in Denmark. Through presenting and analyzing legal economic theories it is attempted to pinpoint which parameters the optimum compensation rules contain from a societal point of view. The preventive reasons in compensation rules are important. Firstly in order to create incentives for R & D and secondly to push the parties to agree on licensing rather than ending up in an infringement action. It is demonstrated that the existing liability rules do not sufficiently reflect the preventive reasons. Possible alternatives to the existing compensation rules are suggested and discussed. These provisions have a punitive character and reinforce the preventive reasons. Inspired by foreign law, a way to implement these alternative compensation provisions into Danish law is introduced.