Rule 131 – Contents of the Application for the determination of damages

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1. The Application for the determination of damages shall contain:

(a) particulars in accordance with Rule 13.1(a) to (d);

(b) the date of the decision on the merits and the action number of the file;

(c) if required a request for an order to lay open books (Rules 141 to 144) in which case the applicant shall provide the matters set out in Rule 141(b) to (e).

 

2. After any procedure for the laying open of books is complete, or, if that has not been requested in the Application referred to in paragraph 1 the applicant shall indicate:

(a) the redress (damages, licence fees, profits) and the interest thereon requested by him;

(b) an indication of the facts relied on, in particular calculations concerning lost profits or profits made by the unsuccessful party;

(c) the evidence relied on;

(d) a statement as to whether the decision on the merits is the subject of an appeal;

(e) his assessment of the amount of damages due to him.

 

Case Law

 

IPPT20240703, UPC CFI, LD Düsseldorf, Kaldewei v Bette

No obligation to lay open books in infringement proceedings (Article 68 UPCA, Rule 131 RoP, Rule 141 RoP). Request to lay open books is part of the proceedings to determine the amount of damages ordered and, where applicable, precedes the quantified claim for damages. Entitlement in infringement proceedings to request information which the plaintiff needs in order to be able to check the validity of information and to obtain indications for its calculation of damages. (Article 68 UPCA, Article 67 UPCA, Rule 191 RoP). In terms of content, such a request is directed at information on the cost factors on which the defendant relies when calculating its profits. In addition, the patent proprietor may, within the scope of this right of disclosure, also request documentary evidence for the information pursuant to Art. 67 (1) UPCA, namely invoices or, if these are not available, alternatively delivery notes.