UPC CFI, LD Dusseldorf, 5 December 2025: Provisional measures granted - urgency and necessity
24-03-2026 Print this page
Provisional injunction, seizure, obligation to provide information granted (Article 62 UPCA), interim award of costs (Article 69 UPCA, R. 211.1(d) RoP), no security for enforcement (Article 82(2) UPCA, R. 211.5 RoP).
Injunction covering manufacturing may be issued even though the infringing product has so far been manufactured by a third party outside the Contracting Member States (Article 25 UPCA, Article 62 UPCA).
As the holders of the various national parts of the contested patent,the applicants were entitled to assert these jointly in a single action (R. 302 RoP).
Claim construction (Article 69 EPC). Interpretation […] has no basis in the claim from a purely linguistic point of view, nor can the skilled person derive any indication of this from the rest of the specification. Not relevant at this point whether the prosecution history must be taken into consideration when interpreting the claims.
Product claim. The method by which the protected product is manufactured is in principle, irrelevant. […]. The situation would be different only if the patent specification provided indications that the method of manufacture is reflected in certain properties of the product, or that the claimed properties can be achieved only by a very specific method.
Offering (Article 25 UPCA) must be understood in an economic sense. It should not be based on the legal understanding of a binding contractual offer. An offer therefore need not contain all the details that would be necessary for the immediate conclusion of a contract by mere acceptance of the offer.
Sufficient conviction as to validity (R. 211.2 RoP) is lacking if the court considers it highly probable that the patent is not valid.
Priority - “same invention” (Article 87 EPC) is to be interpreted as meaning that a claimed invention is to be regarded as the same invention as the invention in an earlier application if the person skilled in the art can derive the subject-matter of the claim directly and unambiguously from the earlier application as a whole, using general technical knowledge […]. The decisive factor is what the person skilled in the art, using their general technical knowledge and viewed objectively, can immediately and unambiguously derive from the entire application as filed at the time of filing, whereby an implicitly disclosed subject-matter, i.e. a subject-matter that arises clearly and unambiguously from what is expressly mentioned, is also to be regarded as part of the content. No impermissible intermediate generalisation: the skilled person will understand the term ‘essentially’ uniformly to mean within the tolerance range, as is apparent from general technical knowledge and does not require any specific disclosure. The skilled person knows that certain differences in the concentration of the analyte may arise, for example, due to the type of measurement (intermittent every 5 minutes or continuous, cf. page 14, lines 10–13).
Urgency – no unreasonable delay of two weeks (R. 209.2(b) RoP, R. 211.4 RoP). Temporal urgency required for the ordering of interim measures is only absent if the injured party has pursued their claims with such negligence and delay that it can objectively be assumed that they have no interest in the swift enforcement of their rights, and it therefore does not appear appropriate to order interim measures.
Necessity provisional measures (R. 206.2(c) RoP). Applicants face the risk of losing market share and encountering difficulties in establishing themselves in markets they have not yet entered.
