HC-2013-000089 - [2025] EWHC 2376 (Ch)

Fecha: 19-Sep-2025

Issues

Issues

51.

It was not disputed that MSD’s breaches of contract and trade mark infringements had caused at least some loss to Merck. The disputes were as to how that loss should be quantified in the circumstances of this case, the reliability of the evidence as to the different possible approaches to quantification, and the extent to which Merck had properly pleaded the main approach on which it ultimately relied. On those points the parties’ arguments raised the following specific issues:

Whether it is appropriate to award damages in the present case based on a notional licence fee.

ii)

If so, whether there is any reliable basis for assessing the value of that notional licence by reference to the royalty rate contained in Merck’s intragroup licences (i.e. the comparables analysis).

iii)

If the comparables analysis is in principle reliable, what adjustments should be made to the Merck intragroup royalty rate to reflect the specific circumstances of the notional licence in the present case, and across what period should the notional royalty be applied?

iv)

Whether Merck can, on its pleaded case, rely on an economic benefits approach to value the notional licence, as an alternative to the comparables approach.

If so, how the notional licence should be quantified based on the evidence of economic benefits.