Unified Patent Court / Five things you need to know about relief and evidence

Five things you need to know about relief and evidence

1. Injunctions and revocations with cross-border effect
The most fundamental change for European patent litigation that the UPC will bring is the cross-border effect of court decisions. It will be possible to obtain an injunction for all participating European countries in a single proceeding. On the other hand, once a UPC division establishes the invalidity of a patent, it will be invalidated for all participating European countries. This applies both to the new Unitary Patent and the traditional European patent (unless opted out).

2. There will be no discovery, but plenty of other ways to secure evidence
The UPC's rules of procedure do not provide for disclosure as is customary in Anglo-American legal systems. However, they allow for other – sometimes far-reaching – means to obtain and preserve evidence. For instance, a UPC division will have the power to order an evidentiary seizure, whereby ex parte relief may be granted to seize evidence at the potential defendant's premises. The court may also order a party to produce specific evidence which lies in the control of that party.

3. It will be possible to obtain a preliminary injunction 
A division of the UPC may grant a preliminary injunction against an alleged infringer intended to prevent any imminent infringement or to prohibit, on a provisional basis, the continuation of an alleged infringement in proceedings on the merits. It may also make such continuation subject to the lodging of guarantees intended to ensure the compensation of the patentee if infringement is made out in the main proceedings. In preliminary injunction proceedings, the court will have a wider discretion to weigh the parties' interests than when infringement is established in proceedings on the merits. 

4. Oral expert evidence
There will be an opportunity to hear witnesses, and particularly party experts, under the control of the presiding judge, either during a separate hearing before the panel or during the oral hearing. Where an expert is heard during the oral hearing, the presiding judge and the judges of the panel may put questions to the expert. Under the control of the presiding judge, both parties may also put questions to the expert. This will however not take the form of cross-examination known in common law jurisdictions.

5. Damages, other relief & legal expenses
Damage awards are aimed at compensating the injured party without room for a punitive aspect, and will thus be limited to the actual damages suffered.  To establish the damages, the Court may order an infringing party to disclose information relating to its distribution channels, sales or customers. The court will also have the authority to order the recall or destruction of all infringing products. The reasonable and proportionate legal costs and other expenses incurred by the successful party will be borne by the losing party.