Article 67

Power to order the communication of information

1.   The Court may, in response to a justified and proportionate request of the applicant and in accordance with the Rules of Procedure, order an infringer to inform the applicant of:

(a) the origin and distribution channels of the infringing products or processes;

(b) the quantities produced, manufactured, delivered, received or ordered, as well as the price obtained for the infringing products; and

(c) the identity of any third person involved in the production or distribution of the infringing products or in the use of the infringing process.

2.   The Court may, in accordance with the Rules of Procedure, also order any third party who:

(a) was found in the possession of the infringing products on a commercial scale or to be using an infringing process on a commercial scale;

(b) was found to be providing on a commercial scale services used in infringing activities; or

(c) was indicated by the person referred to in points (a) or (b) as being involved in the production, manufacture or distribution of the infringing products or processes or in the provision of the services,

to provide the applicant with the information referred to in paragraph 1.

See also: Rule 191 RoP

Case Law

IPPT20240731, UPC CFI, LD Paris, Abbott v DexCom
Request for information regarding distribution chain admissible but dismissed (Article 67 UPCA, Rule 191 RoP, Article 8 Enforcement Directive). Rule 191 RoP can be invoked at different stages of the procedure: during the proceedings, in order to compel parties to submit information with regard to submissions to be made, or at the stage of the final decision. Furthermore, the Court notes that it is appropriate to apply the same reasoning in relation to the right to information under EU Enforcement Directive 2004/48 (Art. 8), which allows a request to be made at any stage of the procedure. Request for information dismissed: not sufficiently justified as the applicant fails to demonstrate that the requested information is reasonably necessary for the purpose of advancing that party’s case. Disclosure of the entire distribution chain of the allegedly infringing products, in a situation where ABBOTT has deliberately chosen to act only against certain distributors, would be disproportionate and not sufficiently directly related to the present case. Moreover, as suggested as an alternative by DEXCOM in its written comments, ABBOTT would still have the possibility of requesting the disclosure of targeted information on the role of each of the defendants in the infringement established by a decision on the merits, in order to determine the damages owed by each of the defendant entities.

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.