The principle of compensation

At the request of the injured party, the Court orders the infringer who knowingly, or with reasonable grounds to know, engaged in an infringing activity to pay damages appropriate to the harm actually suffered (A68(1) UPCA). The injured party is, to the extent possible, to be placed in the position it would have been in had no infringement taken place; the infringer must not benefit from the infringement, but damages are not punitive (A68(2) UPCA).

The Court may (A68(3) UPCA):

  • either take into account all appropriate aspects: the negative economic consequences (including lost profits) suffered by the injured party, any unfair profits made by the infringer and, in appropriate cases, moral prejudice;
  • or set the damages as a lump sum on the basis of, at least, the royalties that would have been due had the infringer requested a licence.

Where the infringer did not act knowingly, the Court may still order the recovery of profits or the payment of compensation (A68(4) UPCA). Actions for compensation are time-barred five years after the date on which the applicant became aware, or had reasonable grounds to become aware, of the last fact justifying the action (A72 UPCA).

The Court also has jurisdiction over actions for compensation derived from the provisional protection conferred by a published European patent application (A32(1)(f) UPCA).

In the decision on the merits, or separately

The amount of damages may be determined in the decision on the merits, or in separate proceedings (R118.1 and R125 RoP UPC).

The decision on the merits may also grant an interim award of damages, covering at least the expected costs of the procedure for the determination of damages (R119 RoP UPC). The stakes can be considerable: in a case where the patent proprietor had refrained from claiming damages in the infringement action, it subsequently sought an interim award of 120 million euros; the Paris Local Division refused to dismiss the request at the outset, and the Court of Appeal declined to review that case-management order, which was neither manifestly wrong nor raised a point of principle (UPC, Court of Appeal, 10 July 2026, Adobe v. Keeex, UPC_CoA_95/2026, points 1 to 7 and 24 to 25).

The procedure for the determination of damages

The application

The successful party lodges its application no later than one year after service of the final decision on the merits (including on appeal) on infringement and validity; it may combine it with a request to lay open books (R126 RoP UPC).

The application contains the identification particulars, the date and number of the decision on the merits and, where applicable, the request to lay open books (R131.1 RoP UPC). Once the books have been laid open (or from the outset, if no such request is made), the applicant specifies the compensation claimed (damages, royalties, profits) and interest, the facts and calculations relied on, the evidence, whether an appeal is pending, and its assessment of the harm (R131.2 RoP UPC).

The fee is €4,000, plus the value-based fee according to the value of the claim (R132 and R133 RoP UPC; see “Court fees and value of the action”).

Where an appeal on the merits is pending, the Court may stay the proceedings on a reasoned request of the unsuccessful party; if it continues them, it may require the applicant to provide security (R136 RoP UPC).

Laying open books

Where the applicant has requested that books be laid open, its request describes the information sought (turnover and profits relating to the infringing products, extent of use of the process, bank and financial documents) and the reasons for the request (R141 RoP UPC).

The unsuccessful party accepts or contests it within two months; reply and rejoinder follow within 14 days each (R142 RoP UPC). The Court orders the laying open of books, on the terms it sets (in particular as to confidentiality), or refuses it, and sets the time limit for resuming the proceedings (R144 RoP UPC).

Defence, reply and rejoinder

An unsuccessful party that accepts the application informs the Registry within two months, and the judge-rapporteur determines the damages accordingly; if it contests the application, it lodges its defence within the same time limit (running, where applicable, from the particulars provided after the books have been laid open) (R137 RoP UPC).

The applicant may reply within one month, and the unsuccessful party may lodge a rejoinder within the following month, each being confined to the points raised in the previous pleading (R139 RoP UPC).

Further steps and decision

The judge-rapporteur may order further exchanges; the rules of the interim and oral procedures apply, with a shortened timetable, and the judge-rapporteur decides on the allocation of the costs of these proceedings (R140 RoP UPC).