Rule 209 – Examination of the Application for provisional measures

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1. Without prejudice to the Court’s decision on the Application for provisional measures, the Court shall have the discretion – including where the Application is made pursuant to Rule 206.3 – to:

(a) inform the defendant about the Application and invite him to lodge, within a time period to be specified, an Objection to the Application for provisional measures which shall contain:

(i) the reasons why the Application shall fail;

(ii) the facts and evidence relied on, in particular any challenge to the facts and evidence relied on by the applicant; and

(iii) where main proceedings on the merits of the case have not yet been started before the Court, the reasons why the action which will be started before the Court shall fail and the facts and evidence relied on in support;

(b) summon the parties to an oral hearing;

2. In exercising its discretion pursuant to paragraph 1, the Court shall in particular take into account:

(a) whether the patent has been upheld in an opposition procedure before the European Patent Office or has been the subject of proceedings in any other court;

(b) the urgency of the action;

(c) whether the applicant has requested provisional measures without hearing the defendant and whether the reasons for not hearing the defendant appear well-founded; and

(d) any Protective letter filed by the defendant; the Court shall in particular consider summoning parties to an oral hearing if a relevant Protective letter has been filed by the defendant.

3. In cases of extreme urgency the standing judge appointed in accordance with Rule 345.5 may decide immediately on the Application for provisional measures and the procedure to be followed on the Application.

4. If the applicant has applied for provisional measures without hearing the defendant and the Court decides not to grant provisional measures without hearing the defendant the applicant may withdraw the Application and may request that the Court order that the Application and the contents of the Application remain confidential.

5. If the patent the subject of the Application is also the subject of a protective letter pursuant to Rule 207 the applicant may withdraw the Application pursuant to paragraph 4.

Case Law:

Court of Appeal

IPPT20250715, UPC CoA, Valinea v Tiru
Urgency. It is necessary to distinguish between the assessment of urgency in the context of an Application for preserving evidence (R. 194.2(a) RoP) and the assessment of urgency in the context of an Application for provisional measures (R. 209.2(b) RoP). In exercising its discretion to determine whether provisional measures should be ordered, the Court shall also have regard to any unreasonable delay in seeking provisional measures (R. 211.4 RoP). No such requirement is imposed either by the UPC Agreement or by the Rules of Procedure when assessing whether an Application for preserving evidence should be granted.

IPPT20250214, UPC CoA, Abbott v Sibio
Urgent interest (R. 209.2(b) RoP). Abbott cannot reasonably be denied an injunction for being cautious not to accuse Sibionics of infringing acts prior to having done a thorough investigation by an independent third party, whereby in view of possible validity attacks it also anticipated the possibility that it might have to rely on more limited dependent claims.

Court of First Instance

IPPT20260212, UPC CFI, LD Düsseldorf, Align v Angelalign
Preliminary injunction granted . (Article 62(1) UPCA , Rule 209 RoP, Rule 211 RoP) . Infringement is assumed - late filed non- infringement arguments submitted in the rejoinder. (Article 25 (a)UPCA, Rule 52 RoP). Claim interpretation (Article 69 EPC) Defendants disagreement with claim interpretation applied by the EPO in the examination concerning lack of validity of the patent does not mean that the burden of proof should shift to the patent proprietor (Article 65 UPCA, Article 54 UPCA).

IPPT20251222, UPC CFI, LD Mannheim, InterDigital v Amazon
Confirmed ex-parte interim measure (R. 209.4 RoP, R. 212.3 RoP) prohibiting anti-suit injunctions or equivalent measures preventing pursuing patent infringement proceedings before UPC based on their European patents subject to the jurisdiction of the UPC (Article 56 UPCA). UK interim-licences equate to an anti-suit injunction (“ASI”). The UK measures referred to as “interim licence” or “adjustable licence“ are an anti-anti suit injunction, exclusively directed against the Applicants enforcing their IP rights in foreign jurisdictions and therefore also before the UPC. No justifiable ground for such an order, which is directed against a party turning to a foreign court to have it assess that party‘s patent rights. Such order is especially not needed to safeguard the UK proceedings. Applicants have a legal interest in defending against such an order even though it violates the ordre public of the European Union and therefore also the ordre public of the UPC contracting member states, which renders it null and void and thus unenforceable in UPC contracting member states. UK Final FRAND-rate setting is a measure equivalent to an ASI in the sense of the Impugned Order, should it encroach upon a party’s fundamental right to enforce its patent rights before the UPC. It is an excessive procedural tactic against comity and the acquis communtaire of the EU and the UPC contracting member states to impose such a concept upon foreign territories by way of a relief, which solely aims at depriving Applicants of pursuing their fundamental (intellectual) property rights and seeking access to justice before a EU court. This Order does not limit UK courts to attach whatever legal consequences to orders, judgment or other decision as long as such effects are strictly limited to the UK territory and do not attach any negative consequences to the Applicants for enforcing their patent rights in relation to the UPCA contracting member states.

IPPT20251219, UPC CFI, LD Düsseldorf, HP v Shenzen Moan
Preliminary injuction granted. (Article 62(2) UPCA, Rule 211 RoP, Rule 209 RoP). A decision by default is not considered. Regular PI order is applicable. (Rule 355.1(a) RoP, Rule 209(1) RoP). If the defendant does not lodge an objection within the time period set by the Court, the application for provisional measures can be decided based on the applicant’s submissions by means of a regular order in the PI proceedings. It is more likely than not that Patents A and B are infringed (Rule 211.2 RoP). by the offer and distribution of the challenged embodiments by Defendant 1.

IPPT20251216, UPC CFI, LD Dusseldorf, Align v Angelalign
Non-infringement arguments disregarded, request for the exchange of further written pleadings dismissed. (Rule 209 RoP, Rule 36 RoP, Rule 9 RoP). Submitted objection does not contain any non-infringement arguments as a reason why the application should fail. New non infringement arguments cannot be seen as a response to the Reply of the Applicant, or as a further deepening of previously raised arguments. Non-infringement arguments and evidence in the Rejoinder not submitted in accordance with the time limit set the sense of Rule. 9.2 RoP. Right to be heart (Article 76 UPCA). The refusal of completely new non- infringement arguments and evidence raised for the first time in the Rejoinder, cannot be seen as a violation of the Defendants’ right to be heard.

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). Sufficient 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.

IPPT20251128, UPC CFI, LD Düsseldorf, Hewlett-Packard v Zhuhai ouguan Electronic
Preliminary injuction granted. (Article 62(2) UPCA, Rule 211 RoP, Rule 209 RoP). A decision by default is not considered. Regular PI order is applicable. (Rule 355.1(a) RoP, Rule 209(1) RoP). If the defendant does not lodge an objection within the time period set by the Court, the application for provisional measures can be decided based on the applicant’s submissions by means of a regular order in the PI proceedings.

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)

IPPT20251017, UPC CFI, LD Düsseldorf, HP v Rentmeister
Preliminary Injunction granted (Article 62 UPCA, Rule 211 RoP, Rule 209 RoP). The application for provisional measures can be decided on the applicant’s submissions by a regular order in the PI proceedings . If the defendant does not lodge an objection within the time period set by the Court or decides not to substantiate its objection for reasons outside of the court proceedings.

IPPT20251016, UPC CFI, LD Düsseldorf, HP v Zuhai and Rentmeister
Good service of application for provisional measures upon Chinese defendant: credible demonstration of correct address (R. 275.2 RoP, R. 209.1(a) RoP). According to its wording, R. 275.2 RoP concerns the service of the statement of claim and, therefore, the proceedings on the merits. However, given the urgent nature of the application for provisional measures, the option to consider the steps already taken as good service must apply all the more so for the Defendant’s information about the application for provisional measures and its invitation to lodge an objection (R. 209.1(a) RoP).

IPPT20251001, UPC CFI, LD Paris, Guardant Health v Sophia Genetics
Summons issued to parties for an oral hearing (R. 210.1 RoP) . Deadlines set for filing documents (Rule 209.1)

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.

IPPT20250801, UPC CFI, LD The Hague, Abbott v Menarini
No postponement of scheduled oral hearing in provisional measures proceedings, further instructions (R. 9.3 RoP, R. 209.1(b) RoP). Due to the inherent urgency of the hearing of an application for interim measures, a postponement of the hearing can only be considered in very special circumstances. No special circumstances are present or asserted by Defendants.

IPPT20250717, UPC CFI, LD Mannheim, Faro v PMT
Application to postpone the date of the oral hearing for interim measures not granted (R. 210 RoP, R. 9 RoP). Due to the urgent nature of the hearing of an application for interim measures, a postponement can only be considered in very special circumstances. This does not automatically include the absence of the respondent's legal and patent attorney representatives due to holidays. In particular, it is generally reasonable to expect a legal representative to either interrupt their holiday in order to attend such oral proceedings or to take their holiday at a later date, or to send an instructed representative to the oral proceedings.

IPPT20250710, UPC CFI, LD Düsseldorf, Aesculap v Shanghai International
Preliminary injunction, seizure and order to communicate information granted (Article 62 UPCA, Article 67 UPCA)). Urgent interest regarding information on the origin and distribution channels to prevent future infringements, not with regard to production costs, profits and advertising, which is primarily relevant for the calculation of damages (Article 67 UPCA, R. 209.2(b) RoP)

IPPT20250616, UPC CFI, LD Hamburg, Steros v Otec
Sufficient degree of certainty regarding the validity of the patent in suit (Article 65 UPCA, R. 209 RoP) lacks if the Court considers it on the balance of probabilities to be more likely than not that the patent is invalid. The burden of presentation and proof for facts concerning the lack of validity of the patent in suit lies with the defendant. It should be noted that the assessment of these probabilities is based on an examination of how the Court – consisting of a panel including a technical qualified judge – would probably decide about the revocation of the patent in the event of a counterclaim on the merits. Decisions of other European Courts or decisions of the EPO concerning the same patent do not bind the Court but may provide helpful indications that the Court may take into account. Defendant was unable to demonstrate that feature group 1.1 was directly and unambiguously disclosed by the public prior use (Article 54 EPC). It can be noted that the attacked embodiment and the alleged prior use differ in their composition, so that no conclusion can be drawn regarding the measurements of the attacked embodiment with regard to the public prior use.

IPPT20250321, UPC CFI, LD Brussels, Barco v Yealink
Provisional measures dismissed based on lack of urgency (R. 209(2)(b) RoP). If an infringement action was lodged immediately this would have led – in view of the one-year proceedings before the UPC – to a decision before the summer 2025. 2 ½ months delay in the filing of the request for provisional measures after reasonable subjective earliest date for the initiation of proceedings – 12 June 2024 – based on factual circumstances in the US proceedings). The Court also takes into consideration that (i) BARCO's earlier knowledge than 12 June 2024 (taking into account the dates of 17 May 2023 and 31 March 2024 (…) of the existence of the alleged infringing devices, (ii) the fact that BARCO itself states that the infringing devices have been on the market for a long time (…), and (iii) the letter from the EPO announcing the EPO's intention to grant on 6 May 2024 (§ 17). Date of the grant of the European patent should be considered as the objective earliest date to file an action with the UPC and not the date of registration of the unitary effect of this European patent (either an action for infringement (Art. 32(1)(a) UPCA) or an action for provisional measures (Art. 32(1)(c) UPCA). Conditions for provisional measures are of a cumulative nature in the sense that not meeting one of these conditions implies the claims for provisional measures to be held unfounded without the necessity or obligation for the Court to further assess any other requirement. (R. 209 RoP) . Such limited assessment is in line with the purpose of an application for provisional measures and the procedural-economy of such proceedings which should not lead to a mini-trial on the merits. Preliminary objections regime of R. 19(1) RoP, and its mentioned time-limit, is not applicable to objections to applications for provisional measures, but relates to proceedings on the merits (R. 209 RoP).

IPPT20250221, UPC CFI, LD Hamburg, Teleflex Life Sciences v Speed Care
Application for provisional measures dismissed (Article 62(2) UPCA, R. 209 RoP). On summary examination, the Court finds that it is not more likely than not that the attacked embodiment makes direct and literal use of the technical teaching of the patent in suit protected by patent claim 1, (Art. 62 (4) UPCA, R. 211.2 RoP. T

IPPT20240909, UPC CFI, LD Hamburg, Philips IP v Shenzhen
Ex parte preliminary injunction and seizure of infringing oral cleansing system in connection with IFA 2024 trade fair in Berlin following earlier cease-and-desist-declaration (Article 62 UPCA, R. 209 RoP)

IPPT20240827, UPC CFI, LD Munich, Syngenta v Sumi Agro
Provisional injunction: imminent danger that the Applicant's right will be infringed by the contested embodiment in the Contracting States, in particular in Germany and Bulgaria (Article 62 UPCA, R. 211 RoP). In proceedings for provisional measures the number of invalidity arguments must generally be reduced to the best three (R. 211(2) RoP). Temporal urgency, unreasonable delay (R 209(2)(b) RoP, R 211(4) RoP). In view of the diverging case law on temporal urgency, which grants the applicant only one month, […] the Local Division Munich adheres to its case law granting two months.

IPPT20240827, UPC CFI, LD Munich, Hand Held Products v Scandit

Preliminary injunction for indirect infringement (Article 62 UPCA, R. 211.2 RoP). Sufficient degree of certainty for provisional measures regarding indirect infringement, not regarding direct infringement (Article 62(4) UPCA, Rule 211(2) RoP, Article 25 UPCA, Article 26 UPCA)). Urgency (Rule 209(2)(b) RoP, Rule 211(3) RoP). As soon as the applicant has all knowledge and documents that reliably enable a promising legal action, he must regularly file the application for interim measures within two months. In case of an injunction to prevent indirect infringement it must always be considered whether a relative prohibition or an absolute prohibition should be issued in view of the remaining possibilities for the patent infringer to offer or supply the essential means for other, non-infringing purposes. Infringement. Validity. Burden of proof. It is the task of the defendant in the present case to present arguments based on the prior art that make the legal validity of the patent in dispute appear insufficiently secure (Article 54 UPCA). Due to the summary nature of the examination of the legal validity in proceedings for the adoption of interim measures, the number of arguments raised against the legal validity must generally be reduced to the best three from the defendant's point of view. The background to this is that while a summary judgement on questions of fact is conceivable, a summary examination of questions of law is not.

IPPT20240603, UPC CFI, LD Hamburg, Ballinno v UEFA
Application for provisional measures dismissed because of a lack of urgency from a temporal perspective; unreasonable delay in seeking provisional measures (Article 62 UPCA, Rule 209(2)(b) RoP, Rule 211 RoP). No necessary measures to clarify the alleged infringement and obtain the documents required to support its claims were taken between mid-November 2023 (when it became clear that a settlement was not within reach) and mid-February 2024. Local Division not convinced with sufficient certainty that the Defendants infringe the patent in suit (Article 62(4) UPCA, Rule 211(2) RoP; Article 69 EPC). The realization of several features of the patent claim is disputed between the parties (see below under IV. 2.). On summary examination, the Court finds that the attacked embodiment does not make direct or indirect literal use of claim 1 or 8 of the patent in suit (see below under IV. 3.). An infringement by equivalent means has also not been sufficiently demonstrated (see below under IV. 4.). […] it cannot be concluded that it is more likely than not that the attacked embodiment makes literal use of the teaching of patent claim 1 and/or 8, and their dependent claims 3, 7, 10 and 15. The facts of the case do not convince the Court that the attacked embodiment establishes an infringement by equivalent means. The technology used in the “Connected Ball Technology” does not make use of the same technical effect. Neither can a support vector machine nor the functioning of the “Connected Ball Technology” in particular be seen as equivalent to the patented com-parison of sound signals.

IPPT20240521, UPC CFI, LD Munich, Dyson v SharkNinja
Preliminary injunction for Germany and France (Rule 211 RoP). Urgency (Rule 209(2) RoP): Two months is normally not an unreasonably long wait for filing an application for provisional measures in the case of a suspected infringement in two or more countries, in view of the necessary prior examination as to whether the embodiments of the defendants actually make use of the teaching of the patent in suit and whether legal action will also be possible with a prospect of success, and in view of the corresponding serious preparation of the proceedings.

IPPT20231211, UPC CFI, LD Düsseldorf, Ortovox Sportartikel v Mammut Sports
Ex parte provisional injunction under penalty of € 10.000 per product or € 30.000 per day and order to hand over devices, all subject to a security of € 500.000. Order to be served by claimant’s counsel. Direct use of the invention (article 25 UPCA). Indirect use of the invention (article 26 UPCA). Validity of the patent is sufficiently certain (article 62(4) UPCA, Rule 211(2) RoP). The fact that the patent in suit has not yet survived any adversarial legal validity proceedings does not preclude this. Even without such prior proceedings, the legal validity can be sufficiently secured. Summary examination of arguments brought in pending Swiss revocation proceedings. Urgency of the action (Rule 209(2)(b) RoP) The urgency required for the ordering of interim measures is only lacking if the injured party has been so negligent and hesitant in pursuing his claims that, from an objective point of view, it must be concluded that the injured party is not interested in enforcing his rights quickly, which is why it does not seem appropriate to allow him to claim interim legal protection (see also UPC_CFI 2/2023 (LK München), order of 19 September 2023, p. 84 f.).

IPPT20230623, UPC CFI LD Munich, NanoString v 10x Genomics
The Court sets the procedural timetable for a preliminary injunction application, including deadlines for submissions and scheduling of the oral hearing (R. 209 RoP). The Court reserves the right to request further briefs. Parties are explicitly instructed not to repeat earlier submissions, ensuring streamlined proceedings for the sake of procedural efficiency.

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Rule 209 – Examination of the Application for provisional measures

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