Rule 197 – Order to preserve evidence without hearing the defendant

1. The Court may order measures to preserve evidence [Rule 196.1] without the defendant having been heard, in particular where any delay is likely to cause irreparable harm to the applicant or where there is a demonstrable risk of evidence being destroyed or otherwise ceasing to be available.

2. Where measures to preserve evidence are ordered without the defendant having been heard, Rule 195 shall apply mutatis mutandis to the oral hearing without the presence of the defendant. In such cases, the defendant shall be given notice, immediately at the time of the execution of the measures.

3. Within 30 days after the execution of the measures, the defendant may request a review of the order to preserve evidence. The Request for review shall set out: (a) the reasons why the order to preserve evidence shall be revoked or modified; and (b) the facts and evidence relied on.

4. The Court shall order an oral hearing to review the order without delay. Rule 195 shall apply. The Court may modify, revoke or confirm the order. In case the order is modified or revoked the Court shall oblige the persons to whom confidential information has been disclosed to keep this information confidential [Rule 196.1].

Relation with Agreement: Article 60(6)

Case law

IPPT20230925, UPC CFI, LD Milan, PMA v AWM

Ex parte order to inspect premises and to preserve evidence; confidentiality (articles 58 and 60 UPCA, Rules 196, 197 and 199 RoP). Urgency: two Girderflex apparatus have allegedly already been sold; at the end of July, another machinery has been offered for sale; AWM will be also present as a confirmed exhibitor at the BIBM Congress in Amsterdam and the commercial offer is still ongoing on AWM’s website. Reasons for ex parte: Data capture is Claimant’s main target and it is generally accepted that digital data can be easily hidden or erased if defendants are given previous notice of this kind of application. Experts are included in the list of patent experts who are used to cooperate with the national Courts, so that the choice guarantees expertise, independence and impartiality, as required by rule 196.5 RoP. 

IPPT20230921, UPC CFI, LD Brussels, Nelissen v OrthoApnea

Ex parte order to preserve evidence at symposium (article 60 UPCA). Urgency and irreparable because evidence may soon no longer be available in the territory. Ex parte (Rule 197(1) RoP): The applicant has sufficiently explained that irreparable damage may be caused to if the defendant is heard, because it is feared that in that case the infringing products will no longer be available at the symposium (Rule 192(3) RoP). No reason for a confidentiality regime as no seizure of confidential materials is sought and seizure will be made of materials publicly available at a symposium. No legal basis for order that the defendant has to cooperate. Counsel and a technical adviser of applicant allowed to be present.