Case Law
Article 64: Corrective measures in infringement proceedings

Court of First Instance - The Hague (NL) Local Division, Order dated 21/11/2024, Plant-e B.V., Plant-e Knowledge B.V. v. Arkyne Technologies S.L. (Case/ Registry number: ACT_549536/2023, ORD_598516/2023)
Example of decision on infringement by equivalence: "1.The patent is valid and infringed by equivalence. 2.The scope of protection in the case of infringement is assessed in two steps, applying Art. 69 EPC and the Protocol. The first step evaluates ‘literal’ infringement of the features of the patent in view of the claim construction is evaluated. In a second step, if the patent is not judged to have been literally infringed, equivalence is assessed. 3.The test applied to the assessment of infringement by equivalence is based on the case law in various national jurisdictions, as proposed by both parties in this case. This entails that a variation is equivalent to an element specified in the claim if the following four questions are answered in the affirmative. 1)Technical equivalence: does the variation solve (essentially) the same problem that the patented invention solves and perform (essentially) the same function in this context? 2)Fair protection for patentee: Is extending the protection of the claim to the equivalent proportionate to a fair protection for the patentee? 3)Reasonable legal certainty for third parties: does the skilled person understand from the patent that the scope of the invention is broader than what is claimed literally? 4) Is the allegedly infringing product novel and inventive over the prior art? 4.The court can order a specific wording for a letter to be sent to customers or to be published on the website of the infringer based on Art. 64 UPCA and Union law."

Court of First Instance - Munich (DE) Local Division, Order dated 15/11/2024, Edwards Lifesciences Corporation v. Meril Life Sciences Pvt Ltd., Meril Gmbh (Case/ Registry number: UPC_CFI_15/2023, ORD_598479/2023)
Example of decision onthe interests of third parties in regard of procedures for implementing corrective measures: "In regard of procedures for implementing corrective measures, Article 64(4) of the UPCA explicitly mentions the interests of third parties. While the Agreement on a Unified Patent Court and the Rules of Procedure for the Unified Patent Court do not explicitly mention the interests of third parties or the public otherwise, these interests may be considered when exercising the discretion stipulated by the ’may’ in Articles 64(4), A. 63(1) and 64(1) UPCA, respectively."