Facts
A. AG (the Plaintiff) holds the exclusive right to use the European Patent X. (the Patent in Suit) in all countries where patents have been filed, can still be filed, or have already been granted. The Patent in Suit is also registered in the Swiss Register for European Patents. B. AG (the Defendant) has been purchasing milk frothers from the Italian company D. Srl. for years and selling these milk frothers in Switzerland and the Principality of Liechtenstein. These milk frothers infringe the Patent in Suit.
With a claim filed on August 28, 2000, at the Commercial Court of the Canton of Aargau, the Plaintiff primarily requested that the Defendant be prohibited from infringing the patent and be ordered to pay damages. In a partial judgment dated June 26, 2003, the Commercial Court of the Canton of Aargau partially upheld the claim and prohibited the Defendant from selling the contested milk frother. Regarding the damages, the Commercial Court of the Canton of Aargau, in a judgment dated August 23, 2005, ordered the Defendant to pay the Plaintiff CHF 720,000 (corresponding to CHF 90,000 per year) plus interest.
Considerations
The Federal Supreme Court stated that the requirements for damages claims in intellectual property law are identical to the liability requirements in the Code of Obligations. The damage, the unlawfulness, the fault, and the adequate causal link between the harmful act and the damage must be examined.
Various methods are recognized for the assessment of damages, in particular the proof of actual or direct damage, the licensing analogy, and the analogous conclusion from the infringer's profit. The licensing…