Award of damages before the UPC

General principles

[Art. 68 (1) and (2) UPCA]

- The infringer shall have engaged the infringing activity knowingly
- Damages correspond to the harm actually suffered
- The patentee is placed back in the position they would have been in absence of infringement
- The infringer shall not benefit from the infringement
- Damages shall not be punitive

Scope of the damages

[R. 125]

In addition to infringement, damages include compensation in case of:
- revocation of an order to preserve evidence [R. 198-2]
- revocation of provisional measures [R. 213-2]
- enforcement of a decision or an order subsequently revoked or varied [R. 354-2]

General principles

[Art. 68 (1) and (2) UPCA]

1^st method:
- negative economic consequences,
including lost profits suffered by the patentee
- unfair profits made by the infringer
- moral prejudice

2^nd method: lump sum at least equal to the amount of a licence fee

Remark:
If the infringer did not act knowingly:
- recovery of profits, or
- payment of compensation

Procedure

Order of payment with the decision on the merits [R. 118-1]

Alternatively: separate proceedings [R. 125]

Possibility of an interim award of damages
in the decision on the merits [R. 119]
or in the decision on the damages [R. 150-2]

Determination of damages in separate proceedings

< 1 year

2 months

1 month

2 months

14 days

Decision on the merits

Application for the determination of damages
with assessment of the amount of damages
[R. 131]

Acceptation
[R. 137-1]

Defence
[R. 137-2; R. 138]

Reply to the Defence
[R. 139]

Rejoinder to the Reply
[R. 139]

Decision on damages
[Art. 68 UPCA]

Application for the determination of damages
with request to lay open books
[R. 131, R. 141]

Acceptation
[R. 142-1]

Defence
[R. 142-2]

Reply to the Defence
[R. 142-3]

Rejoinder to the Reply
[R. 142-3]

Decision on the
request to lay open books
[R. 144]

Order to open books

Refusal

Examination of
the communicated data

Assessment of the amount of damages by the patentee
[R. 131-2]