Casalonga UPC rules of procedure
Powered by Casalonga

Rule 126Start of proceedings for the determination of damages

Where the successful party wishes to have the amount of damages determined, it shall no later than one year from service of the final decision on the merits (including any final decision on appeal) on both infringement and validity (or in the case of an award under Rules 118.1 [1], 198.2 [2], 213.2 [3] or 354.2 [4] from the date of the order for such award) lodge an Application for the determination of damages, which may include a request for an order to lay open books.

Rule 118 – Decision on the merits [5]
...
Please login to continue reading.


Registering with the site

You have requested to take part in a forum reserved for registered visitors.

Personal identifiers

Enter your personal information here. You will receive a registration confirmation shortly by email. Such email may have been considered as spam. If you do not find it in your inbox nor in your spam, please send an email to contact@upc-casalonga.eu.

(Your password must contain at least 6 characters.)

Required fields are indicated with a « * »


New visitor ?

Subscribe


[1-
1. In addition to the orders and measures and without prejudice to the discretion of the Court referred to in Articles 63, 64, 67 and 80 of the Agreement the Court may, if requested, order the payment of damages or compensation according to Articles 68 and 32(1)(f) of the Agreement. The amount of the damages or the compensation may be stated in the order or determined in separate proceedings [Rules 125-144].

[2-
2. Where the measures to preserve evidence are revoked, or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of the patent, the Court may order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by those measures [Rule 354.2].

[3-
2. Where provisional measures are revoked, or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of the patent, the Court may order the applicant, upon request of the defendant, to provide the defendant with appropriate compensation for any injury caused by those measures [Rule 354.2].

[4-
2. Where during an action an enforceable decision or order of the Court is subsequently varied or revoked, the Court may order the party which has enforced such decision or order, upon the request of the party against whom the decision or order has been enforced, to provide appropriate compensation for any injury caused by the enforcement. Rule 125 shall apply mutatis mutandis. Where an enforceable decision or order has been made pursuant to a finding of infringement of a patent and, following the conclusion of the action, the patent is amended or revoked, the Court may order, upon the request of the party against whom the decision or order would be enforceable, that the decision or order ceases to be enforceable.

[5-
(1) The Court shall, at the request of the injured party, order the infringer who knowingly, or with reasonable grounds to know, engaged in a patent infringing activity, to pay the injured party damages appropriate to the harm actually suffered by that party as a result of the infringement.
(2) The injured party shall, to the extent possible, be placed in the position it would have been in if no infringement had taken place. The infringer shall not benefit from the infringement. However, damages shall not be punitive.
(3) When the Court sets the damages:
(a) it shall take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the injured party by the infringement; or
(b) as an alternative to point (a), it may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of the royalties or fees which would have been due if the infringer had requested authorisation to use the patent in question.
(4) Where the infringer did not knowingly, or with reasonable grounds to know, engage in the infringing activity, the Court may order the recovery of profits or the payment of compensation.