UPC CFI, Brussels, 21 March 2025: No provisional measures: lack of urgency - delay of more than 2,5 month
04-05-2025 Print this page
Provisional measures dismissed based on lack of urgency (R. 209(2)(b) RoP). If an infringement action was lodged immediately this would have led – in view of the one-year proceedings before the UPC – to a decision before the summer 2025. 2 ½ months delay in the filing of the request for provisional measures after reasonable subjective earliest date for the initiation of proceedings – 12 June 2024 – based on factual circumstances in the US proceedings). The Court also takes into consideration that (i) BARCO's earlier knowledge than 12 June 2024 (taking into account the dates of 17 May 2023 and 31 March 2024 (…) of the existence of the alleged infringing devices, (ii) the fact that BARCO itself states that the infringing devices have been on the market for a long time (…), and (iii) the letter from the EPO announcing the EPO's intention to grant on 6 May 2024 (§ 17).
Date of the grant of the European patent should be considered as the objective earliest date to file an action with the UPC and not the date of registration of the unitary effect of this European patent (either an action for infringement (Art. 32(1)(a) UPCA) or an action for provisional measures (Art. 32(1)(c) UPCA).
Conditions for provisional measures are of a cumulative nature in the sense that not meeting one of these conditions implies the claims for provisional measures to be held unfounded without the necessity or obligation for the Court to further assess any other requirement. (R. 209 RoP) . Such limited assessment is in line with the purpose of an application for provisional measures and the procedural-economy of such proceedings which should not lead to a mini-trial on the merits.
Preliminary objections regime of R. 19(1) RoP, and its mentioned time-limit, is not applicable to objections to applications for provisional measures, but relates to proceedings on the merits (R. 209 RoP).
Art. 33(1) UPCA establishes the possibility of parallel competence of LDs. Territorial competence of a division of the UPC is a matter of the internal organization of the UPC (Article 33 UPCA)
