Article 13

1. Member States shall ensure that the competent judicial authorities, on application of the injured party, order the infringer who knowingly, or with reasonable grounds to know, engaged in an infringing activity, to pay the rightholder damages appropriate to the actual prejudice suffered by him/her as a result of the infringement. When the judicial authorities set the damages:

(a) they 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 rightholder by the infringement;

or

(b) as an alternative to (a), they may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question.

2. Where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity, Member States may lay down that the judicial authorities may order the recovery of profits or the payment of damages, which may be pre-established.

Case law

UPC Court of First Instance

IPPT20260211, UPC CFI, LD Hamburg, Fives v REEL
Claims for damages for loss of profits dismissed because it cannot be concluded that the claimant is entitled to the amount claimed or that an order for payment of damages can be made (Article 68 UPCA, Article  13 Enforcement Directive). National law applies to a claim for damages for loss of profit where the facts of the case were established before the Unified Patent Court came into force on 1 June 2023. ven when claiming loss of profit due to a price reduction, it must be possible to establish that, in the ordinary course of events or in the light of the particular circumstances, the profit would likely have been made. In this regard, the offer must be assessed for its reasonableness, taking all circumstances into account. The possibility of an alternative offer from the infringer must be taken into account in the assessment if it is established that the client would in any event have requested a further offer. Since both national (German) law on damages and the UPCA are based on Directive 2004/48/EC (the Enforcement Directive), there should be no differing outcomes in the present case when assessing a claim for damages for loss of profit.