UPC Court of Appeal: Substantive Decision: Compensation for Damages, Necessity of Patent Monitoring

According to Art 68(1) UPCA, the Court shall, on the request of the infringed party, order the infringer who knowingly, or with reasonable grounds to know, engaged in an infringing activity, to pay the injured party damages appropriate to the harm actually suffered by it as a result of the infringement. An active market participant in the industry can reasonably be expected to monitor the patent situation before exhibiting its product on the market; it must therefore have reasonable grounds to know of the existence of a patent and the infringing nature of the embodiment concerned. Failure to conduct this monitoring is to be classified as at least negligent, thereby triggering the application of the damages provisions of Art 68(1) UPCA. When setting the damages, all appropriate aspects shall be taken into account, 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, non-economic factors, such as the moral prejudice caused to the injured party by the infringement, pursuant to Art 68(3)(a) UPCA. Submissions regarding such reputational damage must not be based merely on general allegations, as these are insufficient to demonstrate that the injured party's reputation was harmed by the offering of an infringing embodiment at a trade fair. Additional evidence that only proves presence at a trade fair or explains the product's functionality, without containing information about actual reputational damage, does not support the existence of moral prejudice and leads to the dismissal of a corresponding claim for damages (UPC 9.12.2025, CoA 8/2025).