UPCA. A reversal of the burden of proof applies in both of the two possible scenarios envisaged by Article 34 of the TRIPS Agreement. However, unlike the TRIPS Agreement, the contracting states cannot choose to reverse the burden of proof in only one of the two scenarios. As an aside, it is evident that Article 55 UPCA therefore strengthens the position of proprietors of process claims vis-à-vis the TRIPS Agreement in those contracting states that chose to reverse the burden of proof in only one of the two scenarios (for example, Germany and the UK). The position will not be affected in those contracting states that reversed the burden of proof in both scenarios under the TRIPS Agreement (for example, France and Italy).
UPCA. Claims directed at obtaining new products: the identical product can be deemed to have been obtained by the patented process.
UPCA. Claims directed at obtaining known products – reversal of the burden of proof if – a substantial likelihood exists that the identical product was made by the patented process and – the proprietor has been unable, despite reasonable efforts, to determine the process actually used. Exception to the applicability of Articles 54 and 55 UPCA National law may provide for different rules governing when the burden of proof is reversed. Typical facts in an infringement claim Typical facts relied upon by claimants In a typical case, the claimant (i.e. proprietor or exclusive licensee) may be claiming an injunction and damages for the alleged direct infringement of a product claim. Pursuant to the general rule set out in Article 54 UPCA, the claimant will offer evidence for the following facts: – The product falls within the protection of one or more of the product claims of the patent. – The defendant is engaged in one or more of the actions indicated, for instance, in Article 25 UPCA: – making – offering – placing on the market – using – importing or – storing the product for the above purposes. Pursuant to Article 68 UPCA (which concerns the award of damages), the claimant must prove that the infringer either: – knew, or – had reasonable grounds to know, that they were engaging in an infringing act.
UPCA. The onus is on the infringer to prove that its infringement was innocent, which is a heavy burden to meet (see Lancer Boss v
UPCA. The main objectives of our association are to promote the participation and the qualification of European Patent Attorneys in proceedings before the UPC. XXXXX also has associate members representing practitioners who are qualified to participate in proceedings before the UPC pursuant to Article 48(1) o r (4) UPCA.
