UPC CFI, 30 May 2025: Ex parte order to preserve evidence and inspect premises
20-08-2025 Print this page
Ex parte order to preserve evidence (R. 192 RoP) and order for inspection (R. 199 RoP) (Article 60 UPCA), appointment of independent experts, subject to confidentiality circle, time limits procedure on the merits, € 25.000 security and limited use of the outcome of the measures.
Jurisdiction and territorial competence UPC (Article 31 UPCA, Article 32 UPCA). No jurisdiction and territorial competence for order to preserve evidence and inspect premises regarding Organon US and Henlius, which have their registered office and premises outside the competent territory of the UPC. Jurisdiction and territorial competence for order to preserve evidence and inspect premises regarding Organon BE, which has its registered office in Belgium and the actual and threatened infringement has occurred or may occur in Belgium with respect to EP 335. The order to preserve evidence and inspect premises allows the execution at the premises of ORGANON NL and ORGANON BE regardless of whether third parties own any material (including servers) to be found at their premises.
Standard of proof: "a certain degree of plausibility of the infringement or the threat thereof" [...]. he same certain degree should be considered when assessing the validity of the patent. This “certain degree” is practically translated by the Court as making it “highly likely”. As such, the standard of proof for Applicants is lower compared to infringement actions (on the merits) and preliminary measures actions. Applicants should not already prove infringement, as this would render the order for preservation of evidence/access meaningless.
€ 25.000 security for combined order to preserve evidence and inspect premises (Article 60(7) UPCA, R. 196 RoP). Although Art. 60(7) UPCA does not seem to allow the court to make the execution of an order for inspection conditional on a security (see § 30), the Applicants' requests are of such a nature that they combine an order to preserve evidence and an order for inspection.
