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Lufthansa Technik AG v Astronics Advanced Electronic Systems & Anor
Factual and Procedural Background
Company A owned a European patent for an aircraft passenger power-supply apparatus, and the patent expired on 22 May 2018. [Para 34] Company A had previously succeeded on liability for infringement against Company B, Company C and Company D, and the court ordered an inquiry as to damages or an account of profits at Company A’s election. [Para 35][Para 36] Company A elected for an account of profits on 22 September 2022, and the relevant accounting periods differed between the defendants because the claims were brought on different dates. [Para 37]
The account was heard before Judge Leech, who awarded profits against Company B, Company C and Company D and later determined interest and a double-recovery issue. [Para 44][Para 45] The present appeals concerned Company A’s challenge to the quantification and apportionment of profits, and the defendants’ challenges to interest, double recovery, and the construction of a 1998 teaming agreement said to be an exclusive licence. [Para 47][Para 48][Para 232][Para 519][Para 649][Para 681]
Legal Issues Presented
- Whether, in an account of profits for patent infringement, the court should treat differential profits analysis and apportionment as alternative approaches or whether both could be used. [Para 33][Para 233][Para 240][Para 436]
- What the correct approach to legal causation is in this context, including whether a “real driver” analysis was appropriate. [Para 33][Para 444][Para 450][Para 452]
- Whether the court should have apportioned profits at all on the facts, and if so how. [Para 47][Para 159][Para 208][Para 500]
- Whether the 1998 teaming agreement constituted an exclusive licence, and what consequences that had for the account of profits. [Para 48][Para 520][Para 530][Para 565]
- Whether Company A could recover all profits notwithstanding any share attributable to the exclusive licensee, and whether double recovery in foreign proceedings justified a provisional order. [Para 531][Para 635][Para 664]
- Whether interest could be awarded before the date of election for an account of profits, and at what rate. [Para 682][Para 724][Para 751][Para 767]
Arguments of the Parties
Company A's Arguments
- Company A argued that once the defendants failed to establish a non-infringing alternative, all profits were “derived from the infringement” and should not be further apportioned. [Para 240][Para 242][Para 439]
- Company A argued that differential profits analysis was the correct way to identify profits causally attributable to the infringement, and that apportionment was inconsistent with that approach. [Para 240][Para 241][Para 408]
- Company A argued that the judge wrongly treated legal causation as turning on whether infringement was “the real driver” of sales. [Para 444][Para 446][Para 449]
- Company A contended that the 1998 teaming agreement was only a sole licence, not an exclusive licence. [Para 68][Para 520][Para 530]
- Company A maintained that any foreign recovery risk was only theoretical and did not justify a provisional order. [Para 663][Para 664][Para 669]
Company B's and Company D's Arguments
- Company B and Company D argued that apportionment was a well-established English law response where profits were generated by multiple causes. [Para 243][Para 244][Para 299][Para 307]
- They argued that the judge was entitled to find that the infringement was not the legal or proximate cause of all the profits because other regulatory, commercial and competitive factors drove sales. [Para 184][Para 186][Para 194][Para 200]
- They argued that the 1998 teaming agreement granted an exclusive licence, which meant Company A could not claim the whole of the profits subject to the compromise with the licensee. [Para 522][Para 523][Para 529][Para 562]
- They argued that interest was available, but that the rate should reflect the commercial claimant’s borrowing position. [Para 682][Para 753][Para 758]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Lifestyle Equities CV v Ahmed [2024] UKSC 17, [2025] AC 1 | An account of profits is an equitable remedy; the infringer is treated as carrying on the infringing business on behalf of the right holder. [Para 134][Para 138][Para 145] | Used to support the court’s explanation that account of profits is remedial, not punitive, and to reject the argument that the remedy automatically required all profits to be disgorged. [Para 134][Para 138][Para 693][Para 782][Para 784] |
| Hollister Inc v Medik Ostomy Supplies Ltd [2012] EWCA Civ 1419, [2013] FSR 24 | Explained the broad principle that the patentee recovers profits earned by use of the invention. [Para 140][Para 784] | Relied on as part of the basic framework for identifying profits derived from infringement. [Para 140][Para 784] |
| Recovery Partners GP v Rukhadze [2025] UKSC 10, [2025] Bus LR 610 | Distinguished a fiduciary duty to account for profits from the equitable remedy of an account of profits for IP infringement. [Para 145] | Used to show that the remedy in this case was purely remedial and did not depend on fiduciary status. [Para 145] |
| Imperial Oil Ltd v Lubrizol Corp (1996) 71 CPR (3d) 26 | Apportionment can be explored on an account of profits; profits may be attributable to non-infringing factors. [Para 149][Para 287][Para 289] | Used repeatedly as support for the proposition that not all profits from an infringing product are necessarily recoverable. [Para 149][Para 287][Para 288][Para 406] |
| Celanese International Corp v BP Chemicals Ltd [1999] RPC 203 | Profits attributable to non-infringing parts should be excluded; account of profits focuses on what is properly attributable to the invention. [Para 149][Para 297][Para 299][Para 406][Para 414] | Used as a central authority for apportionment and for the “substance not form” approach. [Para 149][Para 297][Para 299][Para 406][Para 413] |
| OOO Abbott v Design and Display Ltd [2016] EWCA Civ 98, [2016] FSR 27 | Where infringement does not “drive” the sale, the whole profit should not be attributed to infringement. [Para 149][Para 317][Para 320] | Used to support the proposition that apportionment is normally required unless the invention is the essential ingredient or drives the sale. [Para 311][Para 317][Para 322][Para 406][Para 457] |
| Anan Kasei Co Ltd v Neo Chemicals & Oxides (Europe) Ltd [2023] EWCA Civ 11, [2023] FSR 14 | Discussed factual and legal causation in patent damages; the “real driver” of the loss is relevant. [Para 150][Para 444][Para 451][Para 849][Para 851] | Used by analogy in the legal-causation analysis, but distinguished because an account of profits also requires apportionment where multiple causes exist. [Para 150][Para 454][Para 457][Para 863] |
| My Kinda Town Ltd v Soll [1983] RPC 15 | The purpose of an account is a fair apportionment of profits actually made and improperly made, not punishment. [Para 262][Para 268][Para 269] | Used as the leading English authority for fair apportionment and for rejecting the claim that all profits must always be surrendered. [Para 262][Para 268][Para 415][Para 785][Para 786] |
| Cartier v Carlisle (1862) 31 Beav 292 | The infringer must account only for profits properly attributable to use of the plaintiff’s mark. [Para 251][Para 270][Para 341] | Used as an early authority supporting apportionment. [Para 251][Para 268][Para 270][Para 341] |
| United Horse Shoe and Nail Co Ltd v Stewart & Co (1888) 5 RPC 260 | A patentee seeking profits must ascertain what proportion of net profits is attributable to the invention. [Para 254] | Used to show that apportionment is compatible with patent accounts. [Para 254][Para 270] |
| United Horsenail Co v Stewart & Co (1886) 3 RPC 139 | A defendant cannot be made liable for the aggregate profit from an entire machine as if all were due to the patented part. [Para 255][Para 257] | Used as an additional apportionment authority. [Para 255][Para 257] |
| Siddell v Vickers (1892) 9 RPC 152 | Discussed comparison with what the defendants would likely have used absent infringement. [Para 258][Para 259] | Analysed but not treated as undermining apportionment; the court said it did not lay down any clear principle against it. [Para 259][Para 260] |
| Potton Ltd v Yorkclose Ltd [1990] FSR 11 | Profits from a complex product can be apportioned by reference to what is properly attributable to infringement. [Para 277][Para 279][Para 284] | Used as a clear decision in favour of apportionment and as a model for excluding non-infringing elements. [Para 277][Para 279][Para 299][Para 304] |
| Hotel Cipriani Srl v Cipriani (Grosvenor Street) Ltd [2010] EWHC 628 (Ch) | Where profit is attributable to multiple causes, apportionment is necessary on a broad-brush basis. [Para 304][Para 307][Para 492] | Used to support the method of broad apportionment and the use of comparable commercial evidence. [Para 307][Para 492][Para 837] |
| Jack Wills Ltd v House of Fraser (Stores) Ltd [2016] EWHC 626 (Ch) | Unless the infringement drove the sale, profits must be apportioned. [Para 324] | Used as further authority for the settled approach after Abbott. [Para 324][Para 347] |
| Peter Pan v Silhouette | No apportionment where the whole product existed only because of misuse of confidential information. [Para 329][Para 330] | Cited as an example where the invention or confidential information was the essential ingredient in the whole product. [Para 330][Para 346] |
| Dart Industries Inc v Decor Corporation Pty Ltd [1993] HCA 93, (1993) 179 CLR 101 | If the product would not have existed without the patented component, the whole profit may be recoverable; otherwise apportionment is required. [Para 336][Para 818][Para 821] | Used as a key contrast case and as support for distinguishing essential-ingredient cases from ordinary complex-product cases. [Para 336][Para 346][Para 432][Para 454] |
| Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1972] RPC 303 | An infringer is accountable for profits attributable to wrongful use of another’s industrial property. [Para 338][Para 341][Para 344] | Used as an additional authority consistent with apportionment and with the “profit attributable” principle. [Para 341][Para 344] |
| Schmieser v Monsanto Canada Inc [2004] SCC 34, [2004] 1 SCR 902 | The inventor is entitled only to the portion of profits causally attributable to the invention; differential profits is the preferred method in Canada. [Para 348][Para 349][Para 353] | Discussed at length but not adopted as binding English law; used mainly to test the competing analysis. [Para 348][Para 354][Para 366] |
| Nova Chemicals Corporation v The Dow Chemical Company [2022] SCC 43, [2022] 3 SCR 352 | A non-infringing option is a tool to isolate causally attributable profits; it is not limited to a strict market substitute. [Para 355][Para 364][Para 367] | Used both as persuasive authority and as a comparison point; the court accepted some of its reasoning but did not treat differential profits as exclusive. [Para 355][Para 367][Para 391][Para 794] |
| Monsanto Canada Inc v Rivett [2009] FC 317, [2010] 2 FCR 93 | A non-infringing option may be considered even if it was not commercially available. [Para 374] | Used to illustrate the Canadian approach and the tension in requiring an available non-infringing alternative. [Para 374][Para 423] |
| Neurim Pharmaceuticals (1991) Ltd v Generics (UK) Ltd [2022] EWCA Civ 359, [2022] RPC 16 | Section 67 of the Patents Act 1977 is designed to enable an exclusive licensee to recover its own losses or share of profits. [Para 638][Para 639] | Used when construing the relationship between patentee and exclusive licensee in the single-pot issue. [Para 638][Para 639][Para 640] |
| Littlewoods Ltd v Revenue and Customs Commissioners [2017] UKSC 70, [2018] AC 869 | Interest reflects the time value of money. [Para 687] | Used to support the compensatory rationale for pre-judgment interest. [Para 684][Para 687][Para 691] |
| Interdigital Technology Corp v Lenovo Group Ltd [2024] EWCA Civ 743, [2024] RPC 24 | Economically correct awards should reflect the time value of money. [Para 687] | Used with Littlewoods to justify interest in an account of profits case. [Para 687] |
| R (Chief Constable of South Yorkshire) v Crown Court at Sheffield [2021] EWCA Civ 1699, [2022] ICR 623 | The obvious and usual order to do justice is an award of interest adjusting for time value and inflation. [Para 689] | Used to reinforce the compensatory basis for awarding interest. [Para 689][Para 690] |
| Riches v Westminster Bank Ltd [1947] AC 390 | Interest compensates for deprivation of money. [Para 692][Para 693] | Used as a classic statement of the compensatory principle. [Para 692][Para 693] |
| Prudential Assurance Co Ltd v Revenue and Customs Commissioners [2018] UKSC 39, [2019] AC 929 | Approved Riches’ explanation of the essence of interest as compensation for being kept out of money. [Para 692] | Used to bolster the conclusion that interest is compensatory in this context. [Para 692][Para 693] |
| President of India v La Pintada Compania Navigacion SA [1985] AC 104 | Chancery courts regularly awarded interest as ancillary relief in equity. [Para 696] | Used as the starting point for the equitable jurisdiction argument. [Para 696][Para 697] |
| Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 | Discussed the source of Lord Brandon’s statement in La Pintada. [Para 698] | Used as contextual support in the equity analysis. [Para 698] |
| Chapman v Chapman [1954] AC 429 | The limits of equity are determined by historical jurisdiction and justification. [Para 699] | Mentioned in the course of exploring the equitable jurisdiction to award interest. [Para 699] |
| Boddam v Riley (1785) 2 Bro CC 2 | Interest on an account was historically tied to an account stated or an implied contract to pay. [Para 703][Para 704] | Used by the defendants to argue against an equitable power to award interest here. [Para 703][Para 704] |
| Techno-Impex v Gebr. Van Weelde Scheepvaartkantoor BV [1981] QB 648 | Restated the traditional equity rule on interest and accounts stated. [Para 707] | Used by the defendants in support of their jurisdiction argument. [Para 707] |
| Quarrell v Beckford (1816) 1 Madd 269 | Equity may award interest where justice requires, even absent a strict contractual basis. [Para 711][Para 717] | Used by Company A to support interest on an account of profits. [Para 712][Para 717] |
| Karberg's case [1892] 3 Ch 1 | Interest may be awarded to restore parties to their original position. [Para 721] | Used by Company A to reinforce the compensatory rationale. [Para 721][Para 723] |
| BP Exploration Co (Libya) Ltd v Hunt (No. 2) [1983] 2 AC 352 | The phrase “any debt or damages” is very wide and can cover sums recoverable in equity. [Para 732] | Used to support section 35A jurisdiction over an account of profits. [Para 732][Para 733] |
| The Aldora [1975] Q.B. 748 | The words “any debt” are apt to cover sums a person is obliged to pay under contract, statute or similar. [Para 733][Para 737] | Used in the section 35A analysis. [Para 733][Para 737] |
| BP v Hunt (No. 2) [1981] 1 WLR 232 | Interest can run from the date liability arose even if the amount was later assessed. [Para 738][Para 739] | Used to support the view that the defendants became indebted once infringement began, if Company A later elected for profits. [Para 738][Para 739][Para 750] |
| Carrasco v Johnson [2018] EWCA Civ 87 | Interest compensates claimants for being kept out of money due. [Para 742][Para 743] | Used by the defendants on the rate/jurisdiction discussion. [Para 742][Para 743] |
| Agbaje v Robert Frew Medical Co Ltd [2023] EWCA Civ 702 | Jurisdiction over interest depends on the nature of the underlying cause of action. [Para 745][Para 747] | Used by analogy in deciding when the “debt” arose for section 35A. [Para 745][Para 748] |
| General Tire & Rubber Co v Firestone Tyre & Rubber Co Ltd [1975] 1 WLR 819 | The cause of action for limitation and section 35A is the same. [Para 749] | Used to support the conclusion that interest can run from the first infringement. [Para 749][Para 750] |
| Sevcon Ltd v Lucas CAV Ltd [1986] 1 WLR 462 | Same cause-of-action approach for limitation and interest. [Para 749] | Used with General Tire and Nykredit. [Para 749] |
| Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No.2) [1997] 1 WLR 1627 | Same cause-of-action approach for limitation and interest. [Para 749] | Used with General Tire and Sevcon. [Para 749] |
| Lonestar Communications Corp LLC v Kaye [2023] EWHC 732, [2023] 1 All ER (Comm) 605 | US$ awards in the Commercial Court should ordinarily attract US Prime as the default rate. [Para 759][Para 760] | Used to justify using a US rate for the US$ profits in this case. [Para 759][Para 760][Para 767] |
| Gordon Form Lathe Co. v Ford Motor Co. | Used in academic discussion of apportioning profits where a patented component is used in a larger product. [Para 381] | Referenced in scholarly material cited by the court when discussing differential profits. [Para 381] |
| Aristocrat Technologies Australia Pty Ltd v Konami Australia Pty Ltd (No 3) [2022] FCA 1373 | Cited as recent academic/foreign authority on apportionment of profits in complex products. [Para 404] | Mentioned as part of the academic and comparative material surveyed on apportionment. [Para 404] |
Court's Reasoning and Analysis
The court held that factual causation alone was insufficient because “but for” causation can over-reach in complex-product cases; legal causation must still separate profits attributable to the invention from profits due to other factors. [Para 405][Para 406][Para 413][Para 454] The judge’s findings that the patent was a barrier or gateway patent did not end the inquiry, because the real question was whether the infringement drove the profits or whether regulatory compliance, product quality, weight, power-management, and market competition were the true drivers. [Para 182][Para 184][Para 186][Para 194][Para 200][Para 467]
On Company A’s first ground, the court rejected the proposition that differential profits analysis and apportionment were mutually exclusive. [Para 437][Para 438][Para 440] The court held that differential profits analysis is useful only where a suitable, uncontested non-infringing option exists; otherwise, English and Australian authority permits a fair apportionment of a single profit pool. [Para 435][Para 436][Para 455] The judge had therefore not erred in using apportionment after rejecting the only pleaded non-infringing alternative. [Para 438][Para 439][Para 440]
On legal causation, the court held that the judge had used the wrong framing by treating the issue as whether the infringement was “the real driver,” but that error did not undermine the result because the substantive enquiry was whether all profits were causally attributable to the infringement or whether they had to be apportioned. [Para 451][Para 452][Para 454][Para 457] The court accepted that the judge’s evaluative conclusion was justified by the evidence of multiple non-infringing causes, including airframe approval requirements, superior products, and the defendants’ broader commercial success. [Para 465][Para 466][Para 467]
On the 1998 teaming agreement, the court concluded that, applying German contract law principles to the agreement, the document granted Company B an exclusive licence under UK patent law, not merely a sole licence. [Para 570][Para 595][Para 605] That construction mattered because it meant Company A could not claim the whole “single pot” of profits: where an exclusive licence covers part of the patent rights, the exclusive licensee stands in the patentee’s shoes for that part, and the profits must be allocated accordingly. [Para 640][Para 644][Para 645]
On double recovery, the court upheld the refusal to make Company A’s award provisional or to stay execution pending foreign proceedings, holding that comity required the French and German courts to deal with any overlap under their own laws. [Para 667][Para 669][Para 674][Para 679] On interest, the court held that interest was available both in equity and under section 35A, because an infringer should not retain the time value of profits that should have been paid to the patentee from the outset. [Para 723][Para 724][Para 750][Para 751] The court also upheld the use of a US interest rate for US$ profits. [Para 762][Para 763][Para 766][Para 767]
Holding and Implications
Company A’s appeal was dismissed; Company B’s and Company D’s appeals on interest and double recovery were dismissed; and Company B’s and Company D’s appeal on KID apportionment was allowed. [Para 519][Para 649][Para 680][Para 767][Para 769] The practical result was that the court preserved the apportionment approach to the account of profits, confirmed that pre-election interest can be awarded in an account of profits case, and held that an exclusive licence can reduce the patentee’s recovery where the licensee has a relevant proprietary share in the profits. [Para 644][Para 723][Para 751][Para 768]
The decision also reinforces that, in complex-product patent cases, courts may apportion profits without first identifying a perfect non-infringing alternative, and that legal causation remains a distinct evaluative step after factual causation is shown. [Para 436][Para 455][Para 456][Para 482]
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