Article 68. Award of damages
4. Where the infringer did not knowingly, or with reasonable grounds to know, engage in the infringing activity, the Court may order the recovery of profits or the payment of compensation.
Note
This provision corresponds to Article 13(2) of the Enforcement directive. Recital 13 of the Unitary Patent Regulation states that: " The regime applicable to damages should be governed by the laws of the participating Member States, in particular the provisions implementing Article 13 of [the Enforcement Directive]" . However, since the UPC will have jurisdiction on unitary patents, this should probably be taken as a reference to Article 68 UPCA without the need to consult the law of the various Member States.
Note however that draft Rule 125 does not seem to refer to the compensation of Article 68.4 UPCA. Hence, how it is different from damages is not immediately clear. Probably a "reasonable compensation" is intended.
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