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

IPPT20241217, UPC CFI, LD Munich, Philips v Belkin
Information can be communicated in paper form or electronically (Article 67 UPCA) unless the judgement specifically determines otherwise. 

IPPT20241122, UPC CFI, LD Mannheim, Panasonic v Guangdong OPPO
Infringement of 4G standard essential patent: Order to communicate information (Article 67 UPCA), 

IPPT20241020, UPC CFI, LD Mannheim, DISH v AYLO - I
A reasoned request for information under R. 191 RoP must sufficiently specify which information is requested and for what reasons. The requesting party may assert a fact that it believes to be true without fear of being accused of failing to furnish the court with truthful facts simply because the opposing party believes this to be false. It is the task of the court to assess whether a disputed fact is true by evaluating the mutual factual submissions and the evidence offered at the appropriate time. An application for transmission of information cannot be granted until the other party has been given an opportunity to respond to how the applicant intends to rely on the requested information. The Court must weigh up the interests of the parties and ensure that a requested order does not amount to unauthorized spying.

IPPT20241020, UPC CFI, LD Mannheim, DISH v AYLO - III
Before establishing infringement, an order to provide information (Art. 67 UPCA, R. 191(1) RoP) that is used to identify further infringers in the distribution and supply chain or to determine and calculate the damage caused by the patent infringement can only be granted under special circumstances.

IPPT20241007, UPC CFI, RD Nordic-Baltic, Abbott v Dexcom
Order following interim conference (R. 105 RoP). Application to provide information dismissed as disproportionate (Article 67 UPCA, Article 8 Enforcement Directive, Rule 191 RoP). The Court order has to be as precise as possible, so that the obligated person may understand without a doubt what kind of information one has to provide. 

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.