Rule 206 – Application for provisional measures

1. An Application for provisional measures may be lodged by a party (hereinafter "the applicant") before or after main proceedings on the merits of the case have been started before the Court.

2. An Application for provisional measures shall contain:

(a) particulars in accordance with Rule 13.1(a) to (i);

(b) a indication of the provisional measures which are being requested [Rule 211.1];

(c) the reasons why provisional measures are necessary to prevent a threatened infringement, to forbid the continuation of an alleged infringement or to make such continuation subject to the lodging of guarantees;

(d) the facts and evidence relied on in support of the Application, including evidence to support the claim that provisional measures are necessary including the matters referred to in Rule 211.2 and .3; and

(e) a concise description of the action which will be started before the Court, including an indication of the facts and evidence which will be relied on in support of the main proceedings on the merits of the case.

3. Where the applicant requests that provisional measures be ordered without hearing the other party (hereinafter "the defendant"), the Application for provisional measures shall in addition contain:

(a) the reasons for not hearing the defendant having regard in particular to Rule 197; and

(b) information about any prior correspondence between the parties concerning the alleged infringement.

4. The applicant shall be under a duty to disclose any material fact known to it which might influence the Court in deciding whether to make an order without hearing the defendant including any pending proceedings and/or any unsuccessful attempt in the past to obtain provisional measures in respect of the patent.

5. Rule 14 shall apply mutatis mutandis. The applicant shall pay the fee for the Application for provisional measures, in accordance with Part 6. Rule 15.2 shall apply mutatis mutandis.

Relation with Agreement: Articles 32(1)(c) and 62

Case law:

Court of Appeal

IPPT20260330, UPC CoA, Sinocare v Abbott
Provisional measures – no unreasonable delay (R. 211 RoP, R. 206.2(d) RoP). Unreasonable delay: the time limit within the meaning of R. 211.4 RoP is to be calculated from the date on which the applicant became aware, or should have become aware, of the infringement that would enable him, in accordance with R. 206.2 RoP, to file an application for provisional measures with a reasonable prospect of success. Thus, the decisive point in time is when the applicant has, or should have had, after exercising due diligence, the necessary facts and evidence to establish infringement within the meaning of R. 206.2(d) RoP. The patent was granted on 4 June 2025 and obtained unitary effect on 18 June 2025. The Application was filed one month after the grant of the patent and about two weeks after obtaining unitary effect. This in and of itself already shows that the Respondent acted swiftly after obtaining (unitary) patent protection. Why provisional measures are necessary (R. 206.2(c) RoP). Provisional measures will be necessary, for instance, where any delay would cause irreparable harm to the patent holder. Irreparable harm is, however, not a necessary condition for the ordering of provisional measures. The necessity of provisional measures may also follow from the fact that there is direct competition between the attacked embodiment and the product of the patent holder. In those cases, granting provisional measures may be justified if they are necessary in order to maintain the status quo that existed immediately prior to the alleged infringement until the decision of the Court on the merits. The necessity for provisional measures may arise in a move from a market situation where only one product is available to one where there are two such competing products. Such a move can be expected to lead not just to price pressure but to a permanent price erosion. Generally worded injunction (Article 62(1) UPCA, R. 211.1(a) RoP). Absent specific circumstances, in case infringement is held to exist with respect to a particular embodiment, a generally worded injunction may be issued. This is generally justified and has the benefit that if, for example, the infringing product is slightly changed or similar products would be introduced on the market under a different name, these products are covered by the issued injunction. With the clarification by the Respondent that the Sinocare iCan i3 is not covered by the preliminary injunction, there is no enforcement or other risk that would justify deviating from the general approach to issue a generally worded injunction in case of patent infringement.
 

IPPT20260327, UPC CoA, Onward v Niche
Appeal dismissed of rejection of provisional measures (Article 62 UPCA, R. 206 RoP, R. 211 RoP). Admissibility of auxiliary requests in provisional measures proceedings (R. 30 RoP, R. 222 RoP). 

IPPT20251128, UPC CoA, Barco v Yealink

Application for interim measures (R. 206 RoP) . R. 19.5 RoP shall apply mutatis mutandis to proceedings for provisional measures. A referral to the competent division is therefore also possible in such proceedings (Rule. 19.5 RoP). Competence of the divisions of the Court of First Instance is a UPC internal matter (Article 33 UPCA).

IPPT20250813, UPC CoA, Boehringer Ingelheim v Zentiva
Succesfull appeal: preliminary injunction granted because of imminent infringement (Article 62 UPCA, R. 206 RoP). In the context of marketing of generics, the mere application for a marketing authorisation by a generics company does not amount to an imminent infringement, nor does the grant of such an authorisation create one. Completion of the national procedures for health technology assessment, pricing and reimbursement for a generic medicine can amount to an imminent infringement. Whether a premature Prior Evaluation Procedure (PEP) application can constitute imminent infringement depends on what can be done on the Portuguese market during the period before the patent expires. Obtaining of PEP  long before the expiry of the patent without any justification can be an indication that the implementer is setting the stage for infringing acts. The absence of any hard mechanism to stop an infringing offer of the products, and the absence of prenotification being immediately visible to third parties to allow action to be taken by the patent holder to prevent infringement creates expectations from public – as well as private – hospitals that the generics will be offered ahead of patent expiry. This gives credence to the claim that the preliminary measures are necessary. 

IPPT20250430, UPC CoA, Insulet v EOFlow
Successful appeal: provisional injunction and order to communicate information granted (Article 62 UPCA, Article 67 UPCA, R. 206 RoP). Territorial scope (Article 34 UPCA): As a rule, injunctions will cover the territory of those Contracting Member States for which the patent has effect, unless certain circumstances justify an exception (CoA Sumi v Syngenta para. 103). The fact that the attacked embodiments are not offered anymore in Germany, does not justify excluding Germany from the preliminary injunction. 

IPPT20250417, UPC CFI, LD Munich, Promosome v BioNTech
Partial Preliminary objection regarding embodiment that has been produced and sold only before 1 June 2023, i.e., establishment of the UPC to be dealt with in the main proceeding (R. 19 RoP, R. 20.2 RoP.) Awaiting outcome of appeal proceedings on the same issue in another case.

IPPT20250303, UPC CoA, Sumi Agro v Syngenta
Provisional injunction confirmed. Necessity provisional injunction because price pressure and permanent price erosion can be expected (Article 62 UPCA, R. 206.2 RoP). Syngenta not required to demonstrate and quantify how sales have been affected during the time when both products (Elumis and Kagura) were on the market. 

IPPT20250224, UPC CoA, Biolitec v Light Guide
Unsuccessful appeal of rejection of provisional injunction changing the status quo on the market. Provisional measures require that proceedings on the merits – which offer more procedural safeguards – cannot be awaited (Article 62 UPCA, R. 206 RoP, R. 211 RoP). The requested measures would change the status quo on the market, established years before the grant of the patent. Appellant has not demonstrated that provisional measures are necessary to protect its current market share or prices or for any other purpose that cannot await a decision on the merits.

IPPT20240925, UPC CoA, Mammut v Ortovox

Unreasonable delay in seeking provisional measures (R. 211.4 RoP). The decisive point in time is when the applicant has the necessary facts and evidence within the meaning of R.206.2d RoP or, having exercised due care, should have had them. Whether a delay is unreasonably long within the meaning of R.211.4 Rules of Procedure depends on the circumstances of the individual case. Since Ortovox first became aware of an impending patent infringement on 28 November 2023, Ortovox did not wait an unreasonably long time to file the application on 1 December 2023; on the contrary, Ortovox filed it promptly. The fact that the orders were not served until 21 or 22 December 2023, and thus the pre-Christmas business could not be prevented, as intended by Ortovox, is not a circumstance related to the period claimed until the application was filed. Irrespective of this, even if all the circumstances were taken into account, this period would not be unreasonably long. 

IPPT20240226, UPC CoA, Nanostring v 10x Genomics II

A distinction must be made between the formal requirements of Rule 206(2)(a) RoP (checked by the Registry) and the substantive requirements of Rule 206(2)(b) to (e) RoP (checked by the court). Formal requirements shall be examined by the Registry as soon as possible (Rule 208(1) RoP, Rule 16(2) RoP). If deficiencies are not corrected within 14 days a decision by default may be issued (Rule 16(5) RoP, Rule 355(1)(a) RoP). The substantive requirements concern the merits of the application for provisional measures and must be considered by the judge when making orders (Rules 209, 211 and 212 RoP). In the context of the orders to be made by the judge in the exercise of his discretion, non-compliance with the requirements set out in R. 206.2(b) to (e) RoP may be to the detriment of the Applicant. The alleged breach of R. 206.2(c), (d) and (e) RoP does not render the application inadmissible. In the present case, the Appeal has also not shown that the Court of First Instance - erroneously in law - did not consider the non-compliance with the requirements of Rules 206.2(b) to (e) RoP in its discretionary decision..
Applicants 2 are entitled to file the application for provisional measures. Due to their corresponding entry in the Register for Unitary Patent Protection, Applicants 2 are to be treated as the proprietor of the patent at issue (Rule 8(4) RoP, Article 47(1) UPCA. According to the findings of the Court of First Instance, which are not contested in the Appeal, Applicant 1 is in any case entitled to file an application as the holder of a non-exclusive licence granted to it by Applicants 2 under Art. 47(3) UPCA. 

Court of First Instance

IPPT20251205, UPC CFI, LD Düsseldorf, Roche v Menarini
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). 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.

IPPT20251121, UPC CFI, LD Paris, Merz v Viatris Santé
Application for provisional measures regarding a generic version of a product protected by SPC rejected. (R.206 RoP) MERZ failed to demonstrate seeking provisional measures against VIATRIS within reasonable delay provided for by Rule 211.4 RoP. Applicants seeking provisional measures have to justify that they have been sufficiently diligent to have access to an expedited procedure. To determine the starting point of the reasonable time limit for taking action, the Court should consider the question: 'When did the applicant become aware, or should have become aware, of the infringement that would enable him, in accordance with R. 206.2 RoP, to file an Application for provisional measures with a reasonable prospect of success?. The court does not follow the line of reasoning by the applicant that the UPC texts provide for two possible starting points regarding the reasonable time limit for taking PI action, which are successive points in time. (Article 62 UPCA, Rule 211 RoP). 

IPPT20251106, UPC CFI, LD Hamburg, Brita v Fileder 
Provisional measures granted via an ex-parte preliminary injunction for the seizure and surrender of infringing goods.  (Article 62 UPCA, Rule 206 RoP, Rule 211 RoP , Rule 212 RoP , Article 25 UPCA). The applicant has demonstrated that the contested embodiments utilize all features of claim 1 of the patent. It is sufficiently demonstrated that the respondent supplies the German distribution company with the contested embodiments, thus engaging infringing acts . (Article 25(a) UPCA). The matter is urgent and there are no indications of undue delay by the petitioner. (Rule. 209.2(b) RoP , Rule 211.4 RoP)

IPPT20251021, UPC CFI, LD Hamburg, Occlutech v Lepu Medical
Preliminary injunction granted (Article 62(1) UPCA). Sufficient proof of threat of imminent infringement with medical device (R. 206.2(c) RoP): by obtaining (and publicly announcing) CE-mark approval for the attacked embodiments after the necessary clinical evaluation, providing “ordering information” and announcing to show-case their products on a trade fair (“device parade”) the Defendants have set the stage to market these products. Applicant has treated the matter with the necessary urgency. It is not relevant at which point the Applicant gained general knowledge of the attacked embodiments and their appearance as long as their marketing in the European Union could not have been considered imminent due to lacking the EU certification of conformity (CE-mark). As this CE-mark approval is, as stated above, a prerequisite for legally marketing a medical device in the European Union, any knowledge of the Applicant regarding the attacked embodiments prior to this date is not relevant. 

IPPT20251017, UPC CFI, LD The Hague, Abbott Diabetes v Sinocare
Provisional injunction granted for UPC territory in view of the likelihood of infringement and validity (Article 62 UPCA, Article 25 UPCA, Article 34 UPCA,  R. 211(1)(b) RoP , Rule 206 RoP). The provisionally established infringement warrants a generally worded injunction. (Rule. 211 RoP) . Abbott explained convincingly that an injunction is necessary and urgent at this moment to avoid Defendants from (further) entering the reimbursement market and to avoid further sales via ‘cash pay’. A provisional injunction is deemed proportionate in view of the infringement. Defendants’ request to make the injunction subject to security is dismissed as is it not argued or demonstrated that there is a risk that Abbott will not or is unable to pay Defendants’ damages.The request to declare that the GlucoMen iCan is considered “goods suspected of infringing an intellectual property right”, is dismissed. Whatever the merits, such declaration is not possible as a provisional measure.

IPPT20251017, UPC CFI, LD Munich, Onward Medical v Niche Biomedical 
Provisional measures rejected. (Article 62 UPCA, Rule 206 RoP) . Auxiliary requests seeking provisional measures on amended versions of the patent rejected .(Rule 211 RoP, Rule 30 RoP). In view of the prior art, there are sufficient doubts as to whether claim 1 of the patent can be considered new and patentable under Article 54 EPC. Prior art “Yoo“ discloses a neuromodulation system for treating patients , preprogrammed stimulation data with a spatial component , and also preprogrammed stimulation patterns with spatial and temporal components. 

IPPT20250911, UPC CFI, LD The Hague, Washtower v Wasombouw
Necessity and balance of interest (Article 62(2) UPCA, R. 206(d) RoP. R. 211(3) RoP). The price difference is not sufficiently large to underpin Defendants’ claim that the markets are so separate that Applicants will not economically “feel” the continued sales by Defendants. To the contrary, the price difference is such that it will undercut Applicants’ pricing, giving rise to a risk of irreparable price erosion while proceedings on the merits take place. Equally, Applicants are right to indicate (as such not contested by Defendants) that these cabinets are not purchased often by a consumer. This means serious irretrievable loss of sales and market share are likely. Also, Applicants have indicated that after their commercial relationship ended in which Defendants manufactured the cabinets of Applicants exclusively for important segments of the market, Applicants now have to build up their own market share in these segments, and Defendants’ cabinets irreparably harm that effort. The fact that the Applicant relies heavily on the patented product, whereas the defendant does not tends to lead the court to find that the balance of interests weighs in the benefit of the Applicant. 

IPPT20250903, UPC CFI, LD Düsseldorf, HP v Zuhai and Rentmeister
Preliminary injunction and other provisional measures for direct patent infringement (Article 25 UPCA, R. 209 RoP). If a defendant, upon invitation, fails to lodge an objection to an application for provisional measures the case can be decided by means of a regular order (R. 206 RoP, R. 209.1(a) RoP, R. 355.1(a) RoP). In a situation like this, a decision by default (R. 355.1(a) RoP) is not something to be considered for several reasons. The fact that the Applicant has, in addition to its regular motions, also requested a decision by default does not prevent a regular order from being issued. Pursuant to Art. 76(1) UPCA, the Court shall decide in accordance with the requests submitted by the parties and shall not award more than is requested. The present order falls within this framework.

IPPT20250902, UPC CFI, LD Dusseldorf, Occlutech v Lepu Medical
Confidentiality club regime regarding information submitted by defendants in proceedings seeking interim measures (R. 206 RoP, R. 262A RoP)
 

IPPT20250728, UPC CFI, LD Düsseldorf, DDP v Greenchemicals
Withdrawal of the application for preliminary measures with the consent of the Defendant (R. 206 RoP, R. 265 RoP)

IPPT20250523, UPC CFI, LD The Hague, Genevant v Moderna
Procedural order on preliminary objections (R. 19 RoP, R. 20 RoP). The PO’s filed on 24 April 2025 (…) on behalf of Moderna Belgium, Moderna Germany and Poland, are not admissible for these defendants (for Moderna Poland this only applies to action 192/25), as they are late filed and these defendants are therefore considered to submit to the jurisdiction and competence of the court and of the LD The Hague (R. 19.7 RoP). Unsubstantiated objections by certain defendants to international jurisdiction of the UPC dismissed and these defendants are considered to submit to the jurisdiction of the UPC (R. 19.7 RoP) (Article 31 UPCA, Article 32 UPCA). Jurisdiction regarding Moderna Poland, Moderna Norway and Spain because of allegation that Moderna Poland, Moderna Norway and Spain each not only infringe individually (asserting that jurisdiction can be based on Art. 7(2) BR), but that they also infringe the patent jointly with Moderna Netherlands in their home country. Therewith they infringe the same (national parts of a European) patent with the same product, which is enough connectivity to consider them co-defendants within the meaning of Art. 8(1) BR. Competence of Local Division The Hague as local division where one of the defendants has its residence and given the commercial relationship between the multiple defendants and the same alleged infringement (Article 33(1)(b) UPCA). Lack of long-arm jurisdiction (extended beyond the UPC territory) is to be dealt with in the main proceedings.

IPPT20241115, UPC CFI, LD Munich, Philips v Shenzen Yunding
Withdrawal of application for provisional measures: 60% of court fees reimbursed (R. 206 RoP), R. 370(9)(b)(i) RoP). Withdrawal of application for provisional measures one day after application was filed (i.e., before closure of written procedure). Application of R. 370.9(b)(i) RoP by analogy 

IPPT20241001, UPC CFI, LD Milan, Insulet v Menarini
Request for intervention by EOFlow in summary proceedings for provisional measures rejected (R. 313 RoP, R. 206 RoP): the outcome of this proceedings only affects Eoflow indirectly: it is only the supplier and the potential negative effects (an economic impairment) at this stage appears only a side effect;

IPPT20240816, UPC CFI, LD Lisbon, Ericsson v Asustek
The Statement of claim requirement to provide “information about any prior or pending proceedings relating to the patent concerned” of Rule 13.1(h) RoP specifically serves the purpose to limit the risk of contradictory decision and lis pendens situations, which can formally be avoided based on the requirements to inform the UPC of prior or pending proceedings relating to the patent concerned before the case is attributed to a panel. The Court further notes that, in case of a possible ex parte proceedings, R. 206.4 RoP demands even higher requirements – any pending proceedings and/or any unsuccessful attempt in the past to obtain provisional measures in respect of the patent. Rule 13.1(h) RoP requires only information, not any kind of Annexes or evidence.

IPPT20240430, UPC CFI, LD Düsseldorf, 10x Genomics v Curio Bioscience
Non-compliance with the substantive requirements for an application for provisional measures (Rule 206.2(d) RoP) may be to the detriment of the Applicant. A possible infringement of R. 206.2(d) RoP does not therefore lead to the Application being inadmissible.