Possible changes in recovery of costs in Danish patent litigation

On 29 August 2019, the Danish Eastern High Court issued a decision that partially relates to the recovery of costs of a winning party in the Danish Maritime and Commercial High Court.

In its decision, the Court reversed a decision on the recovery of costs in a patent litigation case relating to a preliminary injunction and an invalidation suit, the Court increasing the recovery from 8% to approximately 50% of the documented costs of the winning party. What is interesting about this decision is that the Court decided that the winning party would recover 100% of the costs incurred for a European Patent Attorney assisting the winning party.

The decision further recognized that the “standard” hourly rate of a specialized Intellectual Property Attorney is higher than that of a general Attorney-at-law. This is in line with recent decisions made by the Court of Justice of the European Union. The decision of the Danish Eastern High Court may be seen as a precedence-setting decision as the Court is a higher instance than the Maritime and Commercial High Court.

The decision on cost recovery will hopefully encourage companies to look again towards the use of the Danish courts for future patent litigation after a long period of significant reduction in patent litigation within the Danish legal system.

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