A guide to the UPC and the UP - Flipbook - Page 299
15-84 The aim of such a procedure is to allow the claimant who has been successful before the Court
to obtain the information needed to evaluate its claim for damages. The procedure to lay open
books is set out in rr.141 to 144 RoP.
15-85 This application has its origins in art.59(2) UPCA which gives the Court the power to order a
party to disclose banking, financial or other commercial documents under suitable terms as to
confidentiality and art.67 UPCA which gives the Court power to order an infringer (i.e. someone
found by the Court to have infringed) to disclose information. However, what has been done in
the RoP is to include very specific procedures for laying open of books which go above and
beyond the general provisions found in both arts 59(2) and 67 UPCA.
Contents of the Request to Lay Open Books
15-86 A request to lay open books shall include the same information about the claimant and about
the defendant as in a SoC. 124 Where the applicant has made a request for the determination of
damages and the request to lay open books forms part of that application, 125 this information
already forms part of that request. The request to lay open books must also include:
– If the Court has already issued an order to communicate information under r.191 RoP, 126
the details of information ordered by the Court in this context and information given by the
other party;
– In order to substantiate their claim, a description of the information which is held by the
unsuccessful party and to which the claimant requests access. 127 Such information may
relate to the turnover and profits generated by the infringing products or the extent of use
of the infringing process. The documents requested would ideally include management as
well as audited accounts and any relevant bank documents, invoices and the like together
with any related document concerning the infringement. The scope of the information likely
to be requested in this context is therefore quite extensive; and
– The reasons why the applicant needs access to the information, and the facts and evidence it
relies on. 128
Formal Examination by the Registry and Assignment of the Case to the Dedicated Panel
15-87 Rr.134 to 136 RoP are applicable to the procedure to lay open books; no fee is payable.
Accordingly, just as for the application for the determination of damages itself, the Registry shall
examine whether the request complies with the relevant formal requirements and invite the
applicant to correct any deficiencies that it may have made. The request is then recorded and
assigned to a panel of judges, and the judge-rapporteur is appointed. A stay of the application
may also be ordered pending an appeal on the merits. 129
124
125
126
127
128
129
r.141 RoP referring to r.131 RoP referring to r.13(1)(a) to (d) RoP.
r.131(1)(c) RoP.
r.191 RoP refers to art.67 UPCA which relates to orders for communication of information after a finding of infringement and
can include certain financial information such as the price obtained for infringing goods.
r.141(c) RoP.
rr.141(d) to (f) RoP.
r.141 referring to r.136 RoP. See also paragraphs 15-77 and 15-78.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 289
