Statute of Limitations/Statute of Repose

In the interests of achieving finality and preventing the litigation of stale claims, most legal systems impose limits on what acts can be the subject of either civil or criminal claims. These limitations typically vary from two to ten (with murder (as a criminal charge) being usually subject to no limitation. With respect to ongoing conduct such as intellectual property infringement the statue of limitations limits how far back in time damages may be sought for. A statute of limitations typically runs from the date on which a plaintiff knew or should have known of its claim, a statute of repose from a specific event.

In civil law countries the concept of a statute of limitations is known as “prescription.” The operation of these provisions is often very complex and depends on a number of factual issues. They can often for example ‘tolled’ (i.e., the clock stopped) by various events, such as a defendant being outside the jurisdiction or the incapacity of the putative plaintiff.

Thus for example, in the United States and the UK damages can typically be recovered for no more than 6 years from the date the patent infringement suit was filed. In Germany, damages for patent infringement cannot be awarded for acts of infringement which occurred more than three years before the end of the year in which the action was commenced (there is a limited exception for unjust enrichment claims which have a longer date.) In France damages can be awarded in respect of acts of infringement which have occurred during the period commencing three years before the commencement and service of the proceeding, or after either publication of the specification (in French) or receipt of a warning letter (if sent prior to publication of the patent in French), whichever is the later. Italy allows for 5 years past damages, while the Netherlands in theory allows claims for 10 years.

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