Article 68

Award of damages

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.

Case law

Court of Appeal

IPPT20250116, UPC CoA, Fives v REEL
The Court’s competence (or jurisdiction) includes a separate action for determination of damages after a national court - before entry into force of the UPCA - has established the existence of an infringement of a European patent and an obligation in principle for the infringer to pay damages (Article 32(1) UPCA). The wording of Art. 32(1)(a) UPCA is inconclusive; […], while […] the rationale behind Art. 32(1)(f) UPCA speaks in favour of jurisdiction of the UPC for separate damages actions, when the infringement has been established by a national court. The Brussels Regulation is not relevant to the question of interpretation of Art. 32(1)(a) UPCA. Art. 71b Brussels Ia Regulation only regulates the international jurisdiction of the UPC in relation to the courts of non-contracting Member States. Through Art. 68 UPCA, the UPC has its own damages provisions. If an action is lodged with the UPC, within its jurisdiction and encompassing a damages request, there is by consequence a complete set of substantive rules applicable insofar as the European patents of the CMSs are concerned. They are subject to uniform substantive law and procedural rules. The Rules provide for adjudication in – at the very least – one type of scenario, where the existence of an infringement will not have to be assessed in law and in fact by the Court. There does not seem to be a reason to treat the situation in the present case differently.

Court of First Instance

IPPT20241122, UPC CFI, LD Mannheim, Panasonic v Guangdong OPPO
Infringement of 4G standard essential patent: Award of damages, provisional damages of € 250.000 (Article 68 UPCA). 

IPPT20241104, UPC CFI, LD Milan, Oerlikon v Bhagat
Interim award of € 15.000 reputational damages because of exhibition at trade fair (Article 68 UPCA, R. 119 RoP). he ITMA trade fair was held for seven days and is the most important trade fair in the world, organised every four years, with the participation of more than 1,600 exhibitors from 44 countries and over 100,000 visitors. These circumstances are not contested and must therefore be deemed proven, pursuant to Rule 171(2) RoP. 

IPPT20241031, UPC CFI, LD Düsseldorf, Sodastream v Aarke
Entitlement to damages on the merits (Article 68(1) UPCA). The Defendant should have been aware, through the exercise of due diligence, that its actions infringed the patent in suit. Provisional damages covering the expected costs of the proceedings for the award of damages and compensation of EUR 250.000 (R. 119 RoP.) 

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.