A guide to the UPC and the UP - Flipbook - Page 294
– The two-step option: the Court rules on the merits of the case without awarding damages,
which should subsequently be sought afterwards in the context of specifically dedicated
proceedings, dealt with in part 1, chapter 4 of the RoP; 83 or
– The three-step option: the Court first issues a decision on the merits, then decides on a
request to lay open books; 84 and in light of the information obtained, the Court then issues
its decision on damages in a third stage of the proceedings.
Note that with the second and third route, the Court has the additional option to make an
interim award of damages. 85 The different routes are shown in figure 15-2.
Figure 15-2: Procedural Routes to an Award of Damages
Written, interim and
oral procedure
Procedure for the award of damages
Procedure for
cost decision
Decision on
the merits and
on damages
Court's options
Decision on
the merits
Decision
on damages
Optional interim
award of damages
Decision on
the merits
Decision on the
request to lay
open books
Decision
on damages
Starting Proceedings for the Determination of Damages
15-62 The procedure for the determination of damages and compensation is set out in rr.125 to
144 RoP. The determination will include the determination of the amount of compensation to
be awarded as a result of the provisional protection conferred by a published European patent
application under art.32(1)(f) UPCA. 86 The procedure can also be used for compensation claims
brought by a defendant in the following circumstances:
– After measures to preserve evidence or provisional measures have been revoked, have
lapsed due to any act or omission by the claimant, or where it has subsequently been
found that there has been no infringement or threat of infringement of the patent; 87 and
– After a decision or order of the Court has been enforced, but subsequently has been varied
or revoked. 88
83
84
85
86
87
88
rr.125 to 140 RoP.
rr.141 to 144 RoP.
r.119 RoP. Such interim award shall at least cover the expected costs of the procedure for the award of damages and
compensation on the part of the successful party.
r.118(1) RoP also refers to compensation under art.32(1)(f) RoP.
rr.198(2) and 213(2) RoP.
r.354(2) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 284
