Even after the claim for damages arising from a tortious act has fallen under the statute of limitations, the party liable to pay compensation is obliged under Section 852 of the German Civil Code to surrender the proceeds of the tortious act obtained at the expense of the injured party. This so-called "claim for residual damages" only falls under the statute of limitations ten years after it arises, in contrast to the "full" claim for damages mentioned first, which is subject to the regular statutory period of limitation of three years. According to Section 141 sentence 2 of the German Patent Act, it also applies to a patent infringement.
The Tenth Civil Senate of the German Federal Court of Justice, which is not only responsible for patent and utility model law, but also for other areas of law, has now ruled in connection with a donation that the ten-year statutory period of limitation for the claim for residual damages begins when the original claim for damages arises and not – as occasionally argued in literature and case law – only when the original claim falls under the statute of limitations. The entitled party can therefore assert the claim for residual damages for a maximum of seven years after the regular statutory period of limitation has expired.
