A guide to the UPC and the UP - Flipbook - Page 297
reject the action as inadmissible by default. The judge may in his or her discretion give the
claimant an opportunity to be heard beforehand.
15-73 If the required information has been provided, the Registry shall as soon as practicable
record the date of receipt of the application and the application itself in the register, and inform
the applicant of the date of receipt. The panel which gave the decision on the merits of
infringement must also be informed promptly that an application for the determination
of damages has been lodged. The Registry will then serve the application upon the
unsuccessful party. 107
Assignment of the Case to a Dedicated Panel
15-74 The application for determination of damages is assigned to a panel. In principle this is the
panel which rendered the decision on the merits. As the time limit for initiating damages
proceedings is one year, the panel is expected to remember the case details, thus facilitating
the efficient management of the case with regard to damages. If it is not possible or practical
for the original panel to hear the determination of damages, the presiding judge of the division
concerned will appoint a fresh panel. 108
15-75 The presiding judge of the panel to which the action has been assigned appoints a judgerapporteur who may be the presiding judge or another legally qualified judge. 109 The Registry
will inform the claimant and defendant of the identity of the judge-rapporteur as soon as is
practicable.
15-76 The function of acting for the panel in relation to the procedure for the determination of
damages and compensation, including the procedure for the laying open of books, may be
delegated to the judge-rapporteur. 110 Although it is not specifically mentioned, this should lead
to 25 per cent of the fees being reimbursed. 111
Stay of the Procedure for the Determination of Damages
15-77 If the decision on the merits has been appealed, the Court may stay the procedure for a
determination of damages “on a reasoned request by the unsuccessful party” pending any
appeal on the merits. 112 The claimant will then have the opportunity to be heard. Should the
Court decide to continue the proceedings notwithstanding the appeal, it may order the
claimant to render a security. 113
15-78 This provision makes no mention of allowing a stay under any circumstances other than an
appeal on the merits. Therefore, if a defendant makes an application for determination of
damages for a revoked measure to preserve evidence (saisie) 114 or a provisional injunction 115
during the proceedings on the merits the patentee (respondent to the application for
determination of damages) could not then apply for a stay under r.136 RoP. However, the Court
may stay any such determination of damages where it considers that to do so is consistent with
the requirements of the proper administration of justice. 116
107
108
109
110
111
112
113
114
115
116
r.135(1) RoP.
r.135(2) RoP.
r.135(2) referring to r.18 RoP.
r.345(4)(b) RoP.
r.370(9)(a) RoP refers to the hearing of a case by a single judge.
r.136 RoP.
r.352 RoP.
r.198(2) RoP.
r.213(2) RoP.
r.295(m) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 287
