UPC CFI LD Munich, 27 August 2024: PI - imminent danger of infringement

01-12-2024 Print this page
Auteur:
Dick van Engelen
IPPT20240827, UPC CFI, LD Munich, Syngenta v Sumi Agro

Provisional injunction: imminent danger that the Applicant's right will be infringed by the contested embodiment in the Contracting States, in particular in Germany and Bulgaria (Article 62 UPCA, R. 211 RoP). It is at least more likely than not that the contested embodiment, the 2023 version of KAGURA, makes literal use of the technical teaching of claim 1. 

 

In case of a product claim directed to a composition it is sufficient for the applicant to allege and prove that at the time of any act of use under Art. 25 UPCA by the respondent, the attacked composition had all the features of the patent claim or that there is an imminent danger that such an act of use directed to such a composition will be carried out by the respondent in the future. It is not on the applicant to plead and prove why the composition had all features of the patent claim. 

 

Risk of infringement in Contracting States by distributing the 2023 product outside the Contracting States, namely in the Czech Republic, and by advertising "KAGURA" within the Contracting States. The Respondents have in any event created a risk of first infringement that patent-infringing compositions will be manufactured, advertised and distributed by them in the territory of the Contracting States in the future (Art. 25(a), 62(1) UPCA). 

 

In the circumstances of this case, in order to eliminate the risk of first infringement, the Respondents should have offered a cease-and-desist declaration with a penalty clause in respect of the 2023 product. 

 

In proceedings for provisional measures the number of invalidity arguments must generally be reduced to the best three (R. 211(2) RoP). 

 

Temporal urgency, unreasonable delay (R 209(2)(b) RoP R 211(4) RoP). 

In view of the diverging case law on temporal urgency, which grants the applicant only one month, […] the Local Division Munich adheres to its case law granting two months.

 

IPPT20240827, UPC CFI, LD Munich, Syngenta v Sumi Agro