UPC CFI, LD Dusseldorf , 30 October 2025 : Ex-parte order for inspection and preservation of evidence
01-01-2026 Print this page
Ex-parte order for inspection and preservation of evidence granted. (Article 60 UPCA, Rule 192 ,196 RoP).
It is possible that the product "InverJet," as exhibited at the Aquanale trade fair in Cologne, makes use of the technical teaching of the patent. (Art. 60 (1) EPC).
The applicant has referred to photographs showing the external structure of the "InverJet" and used these to explain why it assumes that the features are realized.
An examination of the validity of the patent is not to be carried out in the present proceedings. (Art 65 UPCA).
The only time this wouldn't apply is if there are clear signs that the legal validity of the patent application is in doubt, for example, if there's been a negative decision on validity. However, there are no such indications. The fact that the respondents in the pre-trial letter and in the protective letter cast doubt on the validity of the patent application on the grounds of inadmissible extension is not sufficient .
The inspection and preservation of evidence is urgent. (R. 194. 2 b)
Sufficient substantiation of the infringement can only be provided by examining the product exhibited at the trade fair, which would involve taking measurements and, if necessary, opening the counterflow system. It was not possible for the applicant to carry out a test run, take detailed measurements, or dismantle the product that it obtained from a Distribution customer. The product is no longer available from the distribution customer.
Order issued ex parte : demonstrable risk that evidence would be destroyed or would no longer be available.(Rule. 192.3, 197 RoP)
There is a serious risk that the "InverJet" will be removed from the exhibition grounds at short notice. it would be almost impossible for the applicant to obtain evidence of what it considers to be an infringement of the patent in question by the aforementioned product.
The existence of a protective letter does not preclude the issuance of an ex parte inspection order. (Rule 207 RoP, 211 RoP).
The protective letter does not contain any specific reasons against the issuance of an ex parte order for viewing and inspection. Rather, it is specifically aimed at preventing the issuance of provisional measures without prior hearing , the existence of the protective letter does not in itself alter the risk of the "InverJet" being removed from the exhibition grounds.
