La determinación del daño en patentes. El lucro cesante, la regalía razonable, el enriquecimiento injusto y la restitución de los frutos

Abstract

The determination of damages caused due to the violation of an intellectual property right implies an arduous task for the interpreters of the law. In the present work, we analyze the different positions that scholars have held in this respect for analogous institutes such as trademarks, their legal basis and the differences that each one of them imply in practical terms when determining compensation. Sustained positions have been the following: payment of a reasonable royalty based on loss of profits (damages) or the doctrine of unjust enrichment (article 1308 of the civil code) and / or the restitution of proceeds (articles 694 and 695 of the civil code). The position taken will have consequences not only on the determination of the quantum of compensation but also on the application term, especially as from the reform of article 99 of law Nº17164 of the year 2013 regarding the commencement of the term as from which damages caused should be compensated.