When damages are demanded without evidence: what to do first
A demand letter with a damages figure but no calculation, no register extract and no claim chart is a starting position, not yet a case. Reply in writing, ask for the evidentiary basis before discussing any figure, and check whether the patent is unitary or national — the forum differs.
The legal basis
Since 1 June 2023, a European patent can carry unitary effect across participating states. The substantive framework for that unitary right sits in Regulation (EU) No 1257/2012. Its claim language and translation arrangements sit in Council Regulation (EU) No 1260/2012. Disputes over a unitary patent — including a damages claim — fall to the court created by the Agreement on a Unified Patent Court, not to a national court chosen by the claimant.
A patent that never opted for unitary effect stays inside the national system where it was granted or validated. There, the applicable procedure is the civil procedure of that state, and this page does not name a specific national provision because none is confirmed in our registry for the jurisdiction in question.
The same question — which right, and who owns it — surfaces in other disputes too. See What to do first in this situation and who decides once a deliverable was accepted but never formally transferred.
What changes on the clock
A letter without evidence carries no deadline of its own. The moment that matters is once a formal claim is filed, because whichever court has jurisdiction sets its own procedural timetable from the date of service, not from the date of the letter. Waiting for a "proper" claim before you act is a mistake: unanswered correspondence is read later as an admission, or as a missed chance to challenge the calculation on the record.
A related trap is a mismatch between what a contract says and what a system record shows, which changes the evidentiary picture on its own. When an off-chain agreement contradicts metadata explained.
What to do first
- Acknowledge in writing, without conceding anything. Counsel sends a short reply that reserves position and asks for the evidentiary basis.
- Request the calculation and its inputs. The same letter asks for the royalty rate, the volume figures and the register extract the claim relies on.
- Confirm the patent's status. The docketing team pulls a current register extract to check scope, ownership and whether the right carries unitary effect.
- Preserve internal records. Your team places a hold on correspondence, invoices and product data connected to the alleged infringement.
- Decide the forum before assuming one. Counsel checks whether the patent is unitary, national, or both, since the answer decides which court eventually hears the matter.
- Calendar the real deadline once it exists. The file manager logs the date only after a formal claim, not the demand letter, is served.
Who decides
Who hears a damages claim depends on the nature of the right, not on where the claimant is based.
| Type of right | Forum | Governing framework |
|---|---|---|
| European patent with unitary effect | Unified Patent Court | Agreement on a Unified Patent Court; scope under Regulation (EU) No 1257/2012 |
| National or non-unitary European patent | National civil court of the state of registration | National civil procedure, not covered by this registry |
| Goods held at an EU external border | Customs authority, separate administrative track | Regulation (EU) No 608/2013 |
None of these forums accepts a bare figure as proof. Each expects a calculation the other side can test, and each sets its own procedural calendar once a claim is actually filed.
If your situation differs
If the patent carries unitary effect, the claim belongs before the Unified Patent Court under the Agreement on a Unified Patent Court, and a national court approached instead is very likely the wrong forum.
If the demand follows a customs seizure of goods, a separate administrative track runs under Regulation (EU) No 608/2013, and it does not replace a civil damages claim — the two can run side by side.
If the register extract shows the patent already lapsed, or was never validated in the state in question, the demand may have no live right behind it at all, and that is worth establishing before any other step.
What this page does not cover
This page does not calculate a damages figure, does not draft the substantive defence, and does not replace a review of the specific claim chart once one is produced. It also does not verify facts about the counterparty who sent the letter.
Where the demand originates from a counterparty in Italy, our factual report, Counterparty in Italy and the deadline, lists what the public record shows before you commit resources to a full response.
Related situations
If the trigger was an offer to buy the patent rather than a demand for damages, the What to do first in this situation step bystep sequence differs from the one above, though the first move — do not commit to a figure or a price before verifying the right — stays the same.
Verified
Checked most recently on 4 March 2025, against the following: Regulation (EU) No 1257/2012; Council Regulation (EU) No 1260/2012; Agreement on a Unified Patent Court; Regulation (EU) No 608/2013.
Our own file follows a fixed policy, set out in Retention: the report, the extracts and our copy in the client file, for exactly this reason.
FAQ
What is the first step when damages are demanded without evidence?
Reply in writing without conceding the figure, and ask the sender for the calculation, the register extract and the claim chart behind it.
Which deadline is already running?
None, until a formal claim is served. The demand letter itself starts no court deadline; the response window opens only once a court with jurisdiction serves a claim.
Who decides, and on what evidence?
A court, not the claimant. For a European patent with unitary effect, that is the Unified Patent Court under the Agreement on a Unified Patent Court; for a national patent, the national civil court of the state of registration — and both expect a tested calculation, not a bare figure.