UPC CFI, LD Lisbon, 8 May 2025: Provisional measures rejected - not more likely than not that defendant intends to market the product

Provisional measures rejected; no imminent infringement (Article 62(1) UPCA). Imminent infringement (Article 62(1) UPCA). The UPC must assess imminent infringement independently, solely based on the interpretation of the UPCA, and not on national legislation. In that regard, the Court must evaluate the risk of infringement in light of Art. 62 and 25 UPCA. The risk of infringement cannot be established through an abstract assessment. An infringement is deemed imminent if, in light of the overall circumstances of the case, it can be concluded that the potential infringer has engaged in conduct that is likely to result in an infringement under Art. 25 UPCA. In this regard, it must be established on a case-by-case basis that the potential infringer has carried out acts that make it more likely than not that it intends to offer or place the product on the market before the patent expires […]. Imminent infringement must then be assessed from the point of view of the concrete likelihood that, in light of the circumstances of the case, the Defendant is more likely than not to commit an act of infringement. Mere issuance of a Prior Evaluation Procedure (“PEP”) does not create a risk of imminent infringement. Jurisdiction of the UPC regarding provisional measures because of alleged imminent infringement by defendant (Article 32(1)(a),(c) UPCA, Article 62(1) UPCA). It is irrelevant that an administrative entity issued the Notice from which the imminent infringement arises. According to the Applicant, the imminent infringement of its European Patent is what prompts the need for provisional measures, as the Defendant is currently in a position to offer or place its infringing products on the market at any moment. This factual assertion is, in light of the above-mentioned legal framework, sufficient to establish the jurisdiction and competence of the UPC. Provisional measures not unnecessary because of PI in national Portuguese proceedings (Article 62(1) UPCA). Not the same asserted rights (SPC instead of EP), not identical parties and different territorial scope.

IPPT20250508, UPC CFI, LD Lisbon, Boehringer Ingelheim v Zentiva