Interim Remedies
In principle, the Parties may seek interim remedies at various stages of the case or before an action commences. The Court is entitled to issue a wide range of interim remedies, including:
Orders to preserve evidence and to inspect premises
Provided that the applicant has evidence to support that the patent has been infringed or is about to be infringed, the Court may act promptly and effectively by measures to preserve evidence and inspect premises.
Such orders include the physical seizure of the infringing products, in appropriate cases, the materials and/or implements used in production or distribution and documents relating thereto.
At the request of the applicant, the Court may also order inspection of premises, which are conducted by a person appointed by the Court.
Freezing orders
Pursuant to an applicant’s request, the Court may, given that the patent has been or is about to be infringed, order a Party not to remove any assets from its jurisdiction or not deal in any assets whether located within its jurisdiction or not.
Provisional and protective measures
Preliminary injunctions are directed against the alleged infringer regarding imminent or anticipated infringements and their continuation. The main aim is to prevent imminent or continuation of (alleged) infringement. The Court has the margin of discretion to weigh up the interests of the Parties, particularly the harm for each Party. The Court requires the applicant to provide reasonable evidence in order to support the claim, including evidence that the rights owner is identical with the applicant, the applicant’s right is being infringed or that the infringement is imminent. The Court may issue preliminary injunctions under the threat of periodic penalty payments.
Besides, seizure and delivery up are further preliminary measures to act on products that are suspected to infringe a patent. Furthermore, the Court may order precautionary seizure as security for costs.
Final Remedies
Substantive judgments on the merits may include the following final remedies:
Permanent injunctions
Permanent injunctions are aimed against the infringer at prohibiting the continuation of the infringement. They may also be issued against intermediaries. Non-compliance shall be subject to a recurring penalty payment payable to the Court.
Corrective Measures
- Delivery up or destruction of infringing goods
- Recall order
- Depriving product of infringing property
- Declaration of infringement
- Removal of products from channels of commerce
Pursuant to an applicant’s proposal and after assessing the need for proportionality between the seriousness of the infringement and the remedies to be ordered, the Court will decide on the corrective measures.
Monetary remedies
The infringer, who knowingly infringed or had reasonable grounds to know it was infringing, may be ordered by the Court to pay damages as a result of the infringement. The monetary remedies are of non-punitive nature and intend to put the injured party in a position without an infringement had taken place.
Publication of the judgement
At the request of the applicant and at the expense of the infringer, the Court may order publication of the judgement.
Enforcement
Judgements and orders are enforceable in all Contracting Member States. Judgements and orders which relate to non-unitary patents are however only applicable in which the patent is validated. Enforcement takes place under the same conditions as decisions issued in the respective Contracting Member State. Thus, the enforcement proceedings are governed by the laws of the Contracting Member State where the enforcement takes place.
