UPC: Applicable Law and Requirements for Damages for Lost Profits

In this first-instance judgment, the Local Chamber Hamburg deals in detail with the claim for lost profits and the temporal scope of application of the Unified Patent Court Agreement. National law applies to a claim for damages for lost profits if the facts of the case were concluded before the entry into force of the Unified Patent Court Agreement. Even when claiming lost profits due to a price reduction, it must be possible to establish that, in the ordinary course of things or under the special circumstances, the profit would likely have been made. In this context, the adequacy of the offer must be reviewed, taking into account all circumstances. The possibility of an alternative offer by the infringer is to be included in the assessment if it is established that the client would have requested another offer in any case. Since both national German law on damages and the Unified Patent Court Agreement are based on Directive 2004/48/EC (Enforcement Directive), no different outcomes are expected in the present case when assessing a claim for damages for lost profits. (LC Hamburg 11. 2. 2026, CFI 274/2023)