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

IPPT20251209, UPC COA, Bhagat v Oerlikon 

 Award of damages (Art. 68 (1) UPCA, Rule 112 RoP). An active stakeholder in the industry is expected to monitor the patent landscape before exhibiting its product on the market and should have reasonable grounds to know about the existence of the Patent and the infringing nature of the attacked embodiment. Failure to do is negligent. Submissions relying on general statements are not sufficient to establish a reputational damage of image. Submitted additional evidence does not support the existence of moral prejudice caused to the respondent. It merely indicates that the appellant was present at a trade fair and explains the functioning of the attacked embodiment.  

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

IPPT20260423, UPC CFI, LD Düsseldorf, Quantificare v Canfield
Liability for damages (Article 68 UPCA). As specialized companies, the defendants were obligated to monitor the intellectual property rights situation. Furthermore, they had positive knowledge of the allegations brought against them at the latest since the warning letter issued in 2020 and, subsequently, also through the German patent infringement proceedings. Nor can the defendants successfully argue that the Federal Patent Court has since declared the contested patent invalid. The defendants themselves do not claim that they engaged in acts of use only during the period between the first-instance judgment of the Federal Patent Court and the dismissal of the German nullity action by the Federal Court of Justice.

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.

IPPT20260116, UPC CFI LD Paris, IMC Creations v Mul-T-Lock 
Unitary patent valid (Article 65 UPCA) and infringed (Article 25 UPCA).  Defendant cannot rely on exempting itself from liability on grounds that it did not know or had no reasonable grounds to know it was infringing (Article 68(4) UPCA) when, on the one hand, it exploited the product alleged to be infringing without taking any steps to revoke the patent, and, on the other hand, that it could not rule out the possibility of a subsequent limitation of the patent  which is conflicting with the statement of defence, made prior to the amendment to the patent.

IPPT20251021, UPC CFI, LD The Hague, Amycell
Damages (Article. 68 UPCA, Rule. 118 RoP). Defendant liable for damages  due to the infringement of the patent in the relevant UPC states.  In view of the absence of a defence, the Court establishes that Defendant knowingly infringed or at least had reasonable grounds to know that he would infringe the patent 

IPPT20250731, UPC CFI, RD Nordic-Baltic, Texport v Sioen
Relevance of the determination of the applicable law (Article 24 UPCA). With respect to infringements that have taken place or at least begun before the 1 June 2023, the different approaches outlined above will often lead to the same result, especially if/when the UPC – based on the extensive harmonisation – presumes that the national substantive law in question and the UPCA corresponds. […]  From a practical point of view, it seems like the main difference between these two approaches often would be that the approach applied by Local Division Mannheim would take national law into account not only when it is more favourable to the alleged infringer, but also when it is more favourable to the right holder/licensee. In this context, something should also be said about damages and, in particular, applicable limitations on the right to such damages. The national laws of the contracting member states contain different types of provisions that limit the possibility to receive damages for infringements that took place a long time ago. […] the Court does not need to take a final position on these questions in this decision, but the Court will come back to this topic when discussing damages and communication of information. Liability for damages of (unregistered) exclusive licensee (Article 68 UPCA). SIOEN was fully aware of the existence of the Patent and has acted culpably. It is […] in this context irrelevant that TEXPORT is not registered as an exclusive licensee in the national patent registers. The Court finds that the request to only decide on damages in principle shall be granted. Thus, the amount of the damages shall be determined in the subsequent proceedings under Rule 125 et seq. RoP. In this situation, also the time periods to be taken into account shall be determined in the subsequent proceedings. The relevant time periods and the potential application of national legislation that may affect the right to damages will depend on information referred to in Article 67 UPCA, which only will be made available to the claimant after the decision on the merits. Hence, the declaration of right to damages shall not specify the time periods to be taken into account. Interim award of damages of  € 50.000 (R. 119 RoP). 

IPPT20250721, UPC CFI, RD Nordic Baltic, Edwards v Meril
Joint liability Meril India and Meril Germany (Article 68 UPCA). Acted in a close and interdependent commercial relationship, based on their structure as members of a group of companies, they have a joint liability for their infringing acts in the participating member states of the UPCA. Each of the defendants to pay € 500.000 as provisional damages. 

IPPT20250424, UPC CFI, LD Paris, Seoul Viosys v Laser Components

No damages awarded (Article 68 UPCA). As the claimant has not submitted any evidence to justify the amount of the payments sought, the Court will not grant the claim. 

IPPT20250410, UPC CFI, LD Düsseldorf, Yellow Sphere v Tabbert

Direct patent infringement (Article 25 UPCA), revocation dismissed: permanent injunction (Article 63(1) UPCA), provision of information (Article 67 UPCA), and corrective measures (Article 64 UPCA): recall, removing the product from channels of commerce , destruction (Article 64(2)(e) UPCA), Provisional damages of € 100.000 (Article 68 UPCA). No license for the contested embodiments. 

IPPT20250311, UPC CFI, LD Mannheim, Hurom v NUC - I
Right to information of Article 67 UPCA and Article 68 UPCA may encompass time periods which resided before the entry into force of the UPCA. The question of intertemporal applicability of a right to information and the question of the scope of the period, for which information has to be provided, have to be distinguished. 

IPPT20241122, UPC CFI, LD Mannheim, Panasonic v Guangdong OPPO
Infringement of 4G standard essential patent: Order to communicate information (Article 67 UPCA), Claimant has a right to information needed to verify the information and to calculate the damage (Article 67 UPCA, Article 68 UPCA, R. 190 RoP)

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.