STOCKHOLM REGIONAL DIVISION Law and Practice Contributed by: Peter Kenamets, Fredrik Lüning and Linnéa Hedström, Lind Edlund Kenamets Intellectual Property AB
6. The Future of the UPC 6.1 Advantages and Disadvantages of the UPC There are a number of advantages associated with the NBRD. One particularly notable advantage concerns expert witnesses. The NBRD has proven recep - tive to oral expert evidence. This was demon - strated, in the case between Abbott and Dex - com, where the court held a dedicated day for the examination of expert witnesses from both parties, including both direct and cross-exami - nation. Expert witness testimony is particularly helpful in resolving contentious technical arguments when there are irreconcilable differences between expert opinions. By allowing parties to present and cross-examine experts, the approach taken by the NBRD facilitates a more thorough and transparent examination of conflicting technical evidence. As far as the authors are aware, this was the first time such a hearing occurred before the UPC. It stands in contrast to the approach likely to be adopted by other Divisions of the UPC, which may be more strongly influenced by prevailing Continental European practice – where expert evidence is typically submitted in writing and opportunities for cross-examination are limited or entirely absent. In most national courts in continental Europe, expert evidence is often submitted in written form and cross-examination is limited, while the practice of live testimony aligns more closely with common law traditions, which offer judges the opportunity to observe and assess the cred - ibility of experts in person.
this cap applied regardless of the number of defendants. The Division ordered the patent holder to reim - burse the defendants in an amount just below the cost ceiling – approximately EUR36,000 – along with an additional EUR3,800 for disburse - ments not covered by the cap. The costs award is broadly consistent with the UPC’s Guidelines for the Award of Costs, which do not contain separate provisions for evidence preservation proceedings. That said, one might have expected some reference to Article 5 of the Guidelines, which provides that the value of the proceedings in interim measures cases should be set at 66% of what it would otherwise be. Given that preservation measures are generally limited in scope and purpose, they bear similari - ties to interim relief. Considering that the application was withdrawn at an early stage, the NBRD’s costs order may be viewed as generous to the defendants, who were awarded compensation close to the maxi - mum recoverable amount. On the topic of costs, it is also worth noting that in Edwards v Meril, concerning EP 3 769 722, the NBRD held that a third party requesting access to documents in the case was not a party to the proceedings and could therefore not be ordered to bear costs. 5.4 Damages Proceedings are still at a relatively early stage and the NBRD has not issued any damages awards to date. There is currently no publicly available guidance from this Division on how damages will be calculated in practice and it remains to be seen what approach the Division will adopt in future decisions on damages.
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