Rule 211 – Order on the Application for provisional measures

1. The Court may in particular order the following provisional measures:

(a) injunctions against a defendant;

(b) the seizure or delivery up of the goods suspected of infringing a patent right so as to prevent their entry into or movement within the channels of commerce;

(c) if an applicant demonstrates circumstances likely to endanger the recovery of damages, a precautionary seizure of the movable and immovable property of the defendant, including the blocking of his bank accounts and other assets;

(d) an interim award of costs.

2. In taking its decision the Court may require the applicant to provide reasonable evidence to satisfy the Court with a sufficient degree of certainty that the applicant is entitled to commence proceedings pursuant to Article 47, that the patent in question is valid and that his right is being infringed, or that such infringement is imminent.

3. In taking its decision the Court shall in the exercise of its discretion weigh up the interests of the parties and, in particular, take into account the potential harm for either of the parties resulting from the granting or the refusal of the injunction.

4. The Court shall have regard to any unreasonable delay in seeking provisional measures.

5. The Court may order the applicant to provide adequate security for appropriate compensation for any injury likely to be caused to the defendant which the applicant may be liable to bear in the event that the Court revokes the order for provisional measures. The Court shall do so where interim measures are ordered without the defendant having been heard unless there are special circumstances not to do so. The Court shall decide whether it is appropriate to order the security by deposit or bank guarantee. The order shall be effective only after the security has been given to the defendant in accordance with the Court’s decision.

6. The order on provisional measures shall indicate that an appeal may be brought in accordance with Article 73 of the Agreement and Rule 220.1.

Relation with Agreement: Article 62(2) and (4)

Case Law

Court of Appeal

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. 

IPPT20241203, UPC CoA, SharkNinja v Dyson
Provisional injunction lifted (Article 62 UPCA, R. 211 RoP). Not more likely than not that the patent is infringed. it is not more likely than not that the contested embodiments realise feature 1.3 of claim 1. No need to examine the other grounds brought forward by the parties, given the assessment in relation to feature 1.3 of claim 1. Claim construction feature 1.3: “cyclonic separating apparatus” 

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. Irreparable harm is not a necessary condition for ordering provisional measures (Article 62(2) UPCA, R. 211 RoP, Article 9 Enforcement Directive) (see CJEU, judgment of 28 April 2022, C-44/21, Phoenix/Harting ECLI:EU:C:2022:309, para. 32). Art. 62(2) UPCA and R.211.3 RoP only refer to the possibility of damage, which is to be taken into account when weighing up the interests. Even R.212.1 RP, which allows an ex parte order, does not necessarily require irreparable damage. 

IPPT20240513, UPC CoA, VusionGroup v Hanshow
Sufficient degree of certainty that the right is being infringed (Rule 211.2 RoP; Article 62(4) UPCA) […] requires that the Court consider it on the balance of probabilities at least more likely than not that the patent is infringed.

IPPT20240226, UPC CoA, Nanostring v 10x Genomics II

The validity of the patent at issue is not established with a sufficient degree of certainty for the [preliminary] injunction requested to be issued (Rule 211 RoP, Article 62 UPCA, Article 9(3) Enforrcement Directive). A sufficient degree of certainty is lacking if the court considers it on the balance of probabilities to be more likely than not that the patent is not valid. Standard of proof regarding order for provisional measures issued by way of summary proceedings. Since the order for provisional measures is issued by way of summary proceedings pursuant to R. 205 et seq. RoP, in which the opportunities for the parties to present facts and evidence are limited, the Court of Appeal agrees with the Court of First Instance that the standard of proof must not be set too high, in particular if delays associated with a reference to proceedings on the merits would cause irreparable harm to the proprietor of the patent [...]. On the other hand, it must not be set too low in order to prevent the defendant from being harmed by an order for a provisional measure that is revoked at a later date [...]. The burden of presentation and proof for facts allegedly establishing the entitlement to initiate proceedings and the infringement or imminent infringement of the patent, as well as for all other circumstances allegedly supporting the Applicant's request, lies with the Applicant, whereas, unless the subject-matter of the decision is the ordering of measures without hearing the defendant pursuant to Art. 60(5) in conjunction with Art. 62(5) UPCA, the burden of presentation and proof for facts concerning the lack of validity of the patent and other circumstances allegedly supporting the Defendant's position lies with the Defendant. The aforementioned allocation of the burden of presentation and proof in summary proceedings is in line with the allocation of the burden of presentation and proof in proceedings on the merits.

Court of First Instance

IPPT20250303, UPC CFI, LD Copenhagen, Hybridgenerator v HGSystem
The rules on the preservation of evidence do not prevent a subsequent further examination of the relevant material that has been secured during the preservation of evidence. (Article 62 UPCA,  R. 211 RoP). No order to pay recurring penalty: at this point in time, it appears that all the required codes have been provided in order for the evidence to be secured.

IPPT20250219, UPC CFI, LD Munich, Nokia v Sunmi
Ex parte anti-anti-suit-injunction (Article 62(5) UPCA). Anti-suit and anti-enforcement injunctions violate the rights to justice; they constitute unlawful interference with the applicant's property-like right (Munich Local Chamber, order of 9 December 2024, CFI_755/2024 – Avago/Realtek). Imminent infringement of a patent holder’s right (Article 62(1) UPCA, R. 211 RoP). An infringement of a patent holder's right is imminent within the meaning of Article 62(1) EPC if the infringement has not yet occurred but there are serious and tangible factual indications, based on specific circumstances, that the respondent will engage in unlawful conduct in the near future. The infringing act must be clearly discernible. It must only depend on the respondent's intention whether the final step to commence the infringement is taken. This depends on the circumstances of the individual case. Special circumstances speak against providing security (R. 211.5 RoP). Difficulties of service in the People’s Republic of China and service at EuroCis trade fair which end the next day

IPPT20250219, UPC CFI, LD Munich, Swarco v Yunex - I
Order to preserve evidence and inspect premises has become devoid of purpose due to Swarco Futurit’s factual assertation being undisputed by Yunex (Article 60 UPCA,  R. 211 RoP, R. 360 RoP). The proceedings to secure evidence are a dependent part of the main proceedings. In the subsequent main proceedings, Yunex is precluded from making a first substantiated denial of identity or counter-evidence.

IPPT20250122, UPC CFI, LD The Hague, Mammoet v P.T.S.
Lower threshold for preservation of evidence than for provisional injunction (R. 196 RoP, R. 211 RoP).Degree of certainty required for the granting of an application for the preservation of evidence and description (R.190, 196 RoP) is lower than the threshold for the granting of an injunction as a provisional measure (R.211 RoP) as the former is also meant to collect evidence for further actions. 

IPPT20250109, UPC CFI, LD Munich, air up v Guangzhou Aiyun
Provisional measures ordered -  decision by default (R. 211 RoP, R. 355 RoP, Article 37 Statute). The application was served to the defendant in accordance with Rule 275.2 RoP (App_64018/2024). Within the letter of service, defendant was informed that a decision by default may be issued, if within the time limit foreseen by the Court defendant fails to take a step. Defendant did not respond. 

IPPT20241219, UPC CFI, LD Copenhagen, Hybridgenerator v HGSystem
Ex parte order for preservation of evidence and inspection of property of 26 August 2024 upheld (Article 62 UPCA,  R. 211 RoP). The report prepared by the appointed independent IT expert will be provided to the representatives of the parties to the case. The representatives are obliged to keep secret any trade secrets and other confidential information that may come to their knowledge in this connection. The report can only be used as evidence in the main proceedings. The decision on costs is postponed until the main proceedings

IPPT20241209, UPC CFI, LD Munich, Avago v Realtek
Anti-suit and anti-enforcement injunction granted (Article 62 UPCA). Special circumstances within the meaning of Rule 211.5 RoP cannot be justified solely by the (supposedly) long time required to obtain security. 

IPPT20241125, UPC CFI, LD Munich, Häfele v Kunstsoff
Application for provisional measures dismissed (Article 62 UPCA, Rule 211 RoP). Extraordinary damages caused by further distribution not submitted, lock-in effect cannot be established. Doubts as to the novelty of the patent in suit in spite of response of EPO Examining Division to the raised objections of third parties based on D8. Party: Irrebuttable presumption that registered proprietor of a unitary patent is also the actual proprietor (Rule 8(4) RoP). Weighing of party interests (Article 62(2) UPCA, R. 211(3) RoP). Above all, the weighing of interests must take into account the probability of an erroneous decision and also the objective urgency in terms of the necessity of provisional measures with regard to equally possible proceedings on the merits. Main proceedings are the rule, provisional measures the exception. Is it reasonable or unreasonable for the applicant to wait for a decision in the main proceedings? Doubts as to the novelty of the patent in suit carry additional weight in the weighing of interests. Unreasonable delay – objective urgency (R. 211(4) RoP) links the requirement of objective urgency with the subjective right of the applicant. The provision expresses that an applicant whose conduct already subjectively indicates that he is in no hurry cannot expect to receive assistance through the ordering of interim measures. However, the reverse conclusion, that interim measures are to be ordered simply because the applicant has acted quickly, does not apply. Rather, the ordering of interim measures must also be objectively urgent.

IPPT20241122, UPC CFI, CD Milan, Insulet v Eoflow
Application for provisional measure rejected (R. 211 RoP). Doubts regarding patent validity appear to be preventing the issuance of the requested order. To encapsulate, the subject matter of claim 1 of ‘327 is unlikely to be considered novel in light of the prior art disclosed in US’994, as the fluid delivery device described in US’994 seem to incorporate all the features described in claim 1 of the patent at issue. While the assessment of possible infringement logically precedes in a PI proceeding the assessment of the validity of the patent, the Court deems it necessary and appropriate in this very case to first assess the validity of the patent. Amendments of the patent are subject to Rule 30 RoP. Rule 263 RoP refers only to amendments to pleadings. Auxiliary request to amend the patent pursuant to Rule 30.2 RoP is not admissible in the proceedings for provisional measures.
 

IPPT20241031, UPC CFI, LD Düsseldorf, Valeo Electrification v Magna
Provisional injunction granted for direct and literal infringement with carveout for BMW supplies (R. 211 RoP, Article 62 UPCA, Article 25 UPCA, Article 69 EPC). It is more likely than not that the patent in suit is infringed by the offer and distribution of the challenged embodiments in the territory of the Contracting Member States Germany and France (R. 211.2 RoP). Strong rebuttable presumption that the registered patent proprietor is the material patent proprietor entitled to bring actions (Article 47(1) UPCA, Article 138(1)(e) EPC). In PI proceedings – in which only a “sufficient degree of certainty that the applicant is entitled to commence proceedings pursuant to article 47 UPCA” is required (R. 211(2) RoP) – this presumption can only be rebutted if the title is manifestly erroneous. At least not more likely than not that the patent is invalid on the basis of Article 138(1)(e) EPC: Sufficient degree of certainty that the patent is valid (R. 211(2) RoP). On the basis of the understanding of the scope, the validity of the patent in suit is reasonably certain: the validity of the patent in suit is more likely than its invalidity. Decisions of other European Courts or decisions of the EPO concerning the same patent do not bind the Court but may provide helpful indications which the Court may take into account. Not general revocation rates of patents, but only the patent in suit is relevant (see R. 211.2 RoP “patent in question”). Temporal urgency and unreasonable delay; no fixed deadline of one month, but depends on the circumstances of the individual case (Article 62 UPCA, R. 209(2) RoP, R. 211(4) RoP). The temporal urgency required for the order of provisional measures is lacking only if the infringed party has been so negligent and hesitant in pursuing its claims that, from an objective point of view, it must be concluded that the infringed party has no interest in the prompt enforcement of its rights and that it is therefore not appropriate to order provisional measures. The waiting period within the meaning of R. 211.4 RoP is to be measured from the date on which the Applicant is or should have been aware of the infringement which would have enabled him to file a promising Application for provisional measures in accordance with R. 206.2 RoP. Whether a delay is unreasonable within the meaning of R. 211.4 RoP depends on the circumstances of the individual case […]. Although irreparable harm is not a necessary condition for ordering provisional measures it has to be assessed whether it is unreasonable for the Applicant to wait until the conclusion of the proceedings on the merits, taking into account that an order in the PI proceedings may be reversed. Limitation of the scope of the preliminary injunction as far as supplies to BMW are concerned as a very special exception necessary because of weighing the interests of the defendant (Article 62(2) UPCA, R. 211.3 RoP). Not necessary to decide whether the interests of third parties should also be taken into account […], because the harm alleged by the Defendants in the present case affects themselves, at least in form of possible recourse claims by their customer. Adequate security for damages is normally to be given for damages in case the provisional measures are revoked, unless the specific case exceptionally requires otherwise (R. 211(5) RoP). In line with previous case law of the Düsseldorf Local Division, there is no reason for a decision on the obligation to bear legal costs. The background of this case law is that neither Art. 69 UPCA nor R. 118.5 RoP constitute a suitable basis for a decision on the obligation to bear the costs in PI proceedings. […].

IPPT20241015, UPC CFI, LD Lisbon, Ericsson v Asustek
Application for provisional measures dismissed (Article 62 UPCA, R. 211 RoP).Temporal urgency (R. 211(4) RoP): The burden of proving urgency and due diligence in initiating proceedings is not satisfied if the Applicant fails to provide the Court with the exact date when it became aware of the infringement, particularly when the Court has no other factual or objective temporal indication beyond the date the infringement commenced. An auxiliary request to amend a patent claim in provisional measures is incompatible with the nature of such proceedings (Article 62 UPCA, R. 211. RoP). Requirements for preliminary injunctions (R. 211 RoP) are cumulative. The cumulative nature of the previously mentioned requirements allows the Court not to address all the requirements if one is not satisfied. […] In such cases, the Court may exercise discretion in assessing the other requirements presented by the parties. 

IPPT20240906, UPC CFI, LD Düsseldorf, Novartis v Celltrion
Interim award of legal costs by analogy with R. 211.1 (d) RoP. (Rule 118.5 RoP). Unintended regulatory gap in procedure by which the decision on costs is made (Rule 118.5 RoP) if the application for provisional measures is unsuccessful and the applicant refrains from filing an action on the merits. 

IPPT20240905, UPC CFI, LD Düsseldorf, Bioletic v Light Guide
Rejection of application for provisional measures without a hearing (R. 209 RoP). If the court points out to the applicant the lack of prospects of success of his application for the ordering of interim measures and if the applicant then states in his subsequent statement that in the event that the court adheres to its previous opinion, the claimant does not consider it necessary to discuss the matter further in an oral hearing, the court may, at its discretion, reject the application for interim measures without an oral hearing. In addition to temporal circumstances, factual circumstances are also important for the ordering of interim measures. In this context, the applicant must specifically explain why its request for legal protection cannot already be sufficiently taken into account with an action on the merits and why the ordering of interim measures is therefore necessary.

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). It is at least more likely than not that the contested embodiment, the 2023 version of KAGURA, makes literal use of the technical teaching of claim 1. Risk of infringement in Contracting States by distributing the 2023 product outside the Contracting States, namely in the Czech Republic, and by advertising "KAGURA" within the Contracting States. The Respondents have in any event created a risk of first infringement that patent-infringing compositions will be manufactured, advertised and distributed by them in the territory of the Contracting States in the future (Art. 25(a), 62(1) UPCA). In the circumstances of this case, in order to eliminate the risk of first infringement, the Respondents should have offered a cease-and-desist declaration with a penalty clause in respect of the 2023 product. 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. 

IPPT20240826, UPC CFI, LD Copenhagen, Hybridgenerator v HGSystem
Ex parte order for preservation of evidence and inspection ogf property granted (Article 62 UPCA,  R. 211 RoP)

IPPT20240731, UPC CFI, LD The Hague, Amycel
No unreasonable delay between the finding of the Cayene at the end of July 2023 in the Netherlands and the filing of the Application on 3 May 2024. (Rule 211(4) RoP). Provisional injunction granted (Rule 211(1) RoP, Rule 118.5 RoP, Rule 213.1 RoP). A cost decision (including the height of the costs to be reimbursed) is to be taken in the proceedings on the merits, that will have to follow these proceedings. The court shall specify the date pursuant to R. 213.1 RoP relevant for starting these proceedings in the order.

PPT20240626, UPC CFI, LD Hamburg, Alexion Pharmaceuticals v Amgen
Application for provisional measures dismissed (R. 211.2 RoP). The court is not at all convinced that the opposition division of the EPO will share the opinion of the court on the question of claim construction and may decide that the patent is invalid (Article 62(4) UPCA, R. 211.2 RoP, Article 69 EPC). Likely insufficient disclosure of technical teaching (Article 83 EPC). The Applicant and its expert [...] concur that an antibody with the signal peptide could not have been used as drug (= pharmaceutical composition). It would exhibit an extreme tendency to aggregate under physiological buffer conditions due to their pronounced hydrophobic properties, which would prevent them from being formulated as pharmaceutical composition and used as a drug. Based on this, the technical teaching according to the patent might not be sufficiently disclosed and likely be revoked by the opposition division. 

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. 

IPPT20240619, UPC CFI, LD The Hague, Abbott v Sibio – EP283
Preliminary measures denied. No sufficient degree of certainty that patent is valid (Article 62(4) UPCA; Rule 211(2) RoP). Added matter under the so-called “gold standard” disclosure test of the Boards of Appeal of the EPO for added matter (article 138(1)(c) EPC). Sufficient degree of certainty that the patent is valid (Rule 211(2) RoP) is lacking if the court considers it on the balance of probabilities to be more likely than not that the patent is not valid.The burden of presentation and proof with regard to the facts from which the lack of validity of the patent is derived and other circumstances favourable to the invalidity or revocation lies with the opponent (Art. 54 UPCA). The Court applies the so-called “gold standard” disclosure test of the Boards of Appeal of the EPO for added matter (article 138(1)(c) EPC) which is also the standard used in many Contracting Member States of the UPC. Abbott ordered to bear reasonable and proportionate legal costs and other expenses incurred by Defendants in these proceedings, up to the applicable ceiling (Art. 69 UPCA; and R. 118.5 and R. 150.2 RoP); Even if the applicant were to be successful in the proceedings on the merits, it will still have to bear the costs of these proceedings as the unsuccessful party. 

IPPT20240619, UPC CFI, LD The Hague, Abbott v Sibio – EP879
Immediately enforceable preliminary injunction for direct infringement and order to deliver up devices in direct or indirect possession, subject to a recurring penalty payment (Rule 211 RoP). International jurisdiction UPC (Article 31 UPCA): competence for Ireland undisputed (Article 26 BR); Court does not understand the application to also involve the UK. Abbott’s interests outweigh any interest of Sibio (Rule 211(3) RoP); action not devoid of purpose (Rule 360 RoP). Given Sibio c.s.’ breaches of their cease-and-desist declarations, which do not include an irrevocable penalty payment in case of breaches.  According to their submissions, Sibio c.s. has left the markets where the patent is in force. This court therefore fails to see any legitimate interest on their part in opposing the preliminary injunction sought.

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. Nullity arguments in proceedings for provisional measures (Article 62 UPCA, Rule 211(2) RoP). Due to the summary nature of the examination of the legal validity in proceedings for the adoption of provisional measures, it is not possible to consider a full examination of all challenges to the legal validity as in nullity proceedings. Rather, the number of arguments raised against the legal validity in the present case must be reduced to the three best arguments from the point of view of the defendants. No interim award of costs (Rule 211(1)(d) RoP). There is no reason for a provisional decision on costs in proceedings to order interim measures if the summary proceedings - as here - must be followed by proceedings on the merits and no special reasons, e.g. an insolvency risk, have been put forward that would require such an order.

IPPT20240430, UPC CFI, LD Düsseldorf, 10x Genomics v Curio Bioscience
Provisional cease and desist order, subject to Applicant providing € 2 million security (Article 62 UPCA, Rule 211 RoP).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. Rebuttable presumption that a person registered as the patent proprietor in the respective national register is entitled to be registered (Rule 8.5(c) RoP, Rule 211.2 RoP, Article 47 UPCA,). Sufficient certainty of the validity of the patent for the ordering of provisional measures (Article 62 (4) UPCA, Rule 211.2 RoP). No award of damages possible in proceedings for provisional measures (article 62 UPCA, Rule 211(1) RoP). The content of provisional measures is exhaustively regulated in Art. 62 UPCA in conjunction with R. 211(1) RoP. The awarding of damages is not mentioned there. Its assertion is therefore reserved for the main proceedings. No security for legal costs of Defendant in urgent proceedings (Article 69(4)) UPCA, Rule 158 RoP, Rule 211.1(d) RoP). No reason for a decision on costs in proceedings for the ordering of provisional measures if, as in this case, a main proceedings follows the urgent proceedings. Unintended regulatory gap: interim award of costs  in favour of Defendant not provided for in urgent proceedings (Rule 118.5 RoP, Rule 211.1 RoP)

IPPT20240409, UPC CFI, LD Düsseldorf, Ortovox Sportartikel v Mammut Sports
No interim award of costs (Article 69 UPCA, Rule 211(1)(d) RoP). There is no reason for a decision on costs in proceedings for interim measures if the summary proceedings are followed by proceedings on the merits. As a rule the applicant is to provide adequate security for appropriate compensation for any injury if the order for provisional measures is revoked, unless the specific case exceptionally requires otherwise (Rule 211(5) RoP).

IPPT20240129, UPC CFI, LD Düsseldorf, 10x Genomics v Curio Bioscience
Request, with the consent of the parties, to assign an additional technically qualified judge to the panel  for provisional measures application (article 8(5) UPCA). Appropriate because of the requested provisional measures, which requires examining reasonable doubts as to the validity of the patent in the technically demanding field of genetic engineering. The ordering of provisional measures can only be considered if the legal validity of the patent in dispute is sufficiently secured (Article 62 (4) UPCA in conjunction with Rule 211(2) RoP. It is therefore incumbent on the panel to obtain a sufficient picture of the legal validity on the basis of the parties' submissions and, in particular, to examine whether any objections raised against the validity of the patent in suit are likely to give rise to reasonable doubts as to the validity of the patent in suit (UPC_CFI_452/2023 (LK Düsseldorf), order of 11 December 2023 [IPPT20231211]). Although the involvement of a technically qualified judge ex officio is only mentioned in the Rules of Procedure in Rule 34 RoP and thus in the provisions on the main proceedings, Article 8(5) UPCA grants the panel in general and thus also in summary proceedings the right, after hearing the parties, to involve such a judge on its own initiative if it considers this appropriate (see also UPC_CFI_2/2023 (LK Munich) [IPPT20230919], UPC_CFI_214/2023 (LK Helsinki [IPPT20231020]).

IPPT20240125, UPC CFI, LD Düsseldorf, Ortovox Sportartikel v Mammut Sports
Request at panel’s initiative for a technically qualified judge in provisional measures proceedings (Rule 211(2) RoP, Article 8(5) UPCA, Article 62(4) UPCA). Sensible and advisable to also involve technically qualified judge already in the present proceedings because the respondents deal extensively with the legal status of the patent in dispute in support of their request for examination. 

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. 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. 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.). Ex parte provisional measures (Rule 212 RoP) Credible that applicant it is threatened with irreparable damage without the issuance of an ex parte order due to the delay associated with the involvement of the opposing party. The fact that the "ISPO Munich 2023" trade fair had already ended at the time the application for interim measures was filed does not preclude this. A prior hearing of the defendant does not promise such a gain in knowledge that it would be justified to wait with the issuance of an order against the background of the damage threatening the applicant. With regard to the legal validity, the Local Board has before it both the action for revocation brought by the respondent 1) before the Federal Patent Court of Switzerland and the petitioner's reply in this regard  Enforceability of the order subject to providing security for appropriate compensation ordered (Rule 211(5) RoP). Set at amount in dispute, given that enforcement damage are at this time difficult to estimate for the local division

IPPT20230919, UPC CFI, LD Munich, 10x Genomics v Nanostring

Provisional measure (article 62 UPCA, Rule 211 RoP). Sufficient degree of certainty that the patent is valid. Prevailing likelihood (“überwiegende Wahrscheinlichkeit”) – more likely than not – is required and sufficient. No unreasonable delay in seeking provisional measures. Applicants filed the request for an injunction on June 1, 2023, the earliest possible date for requesting provisional measures regarding a unitary patent with the UPC. The enforcement of a European patent without unitary effect must be carried out separately in all member states concerned and is therefore not an equivalent means of enforcing rights in the case of infringement compared to the enforcement of a unitary patent before the UPC. Interests of and potential harm for either of the parties. The Local Board considers that the interest of the right holder in not having his rights infringed outweighs the interest of the potential infringer in securing market shares now through the continuation of the infringement, which he can no longer obtain later through a possible licence agreement. The damage potentially suffered by the applicants as a result of a continuation of the infringing acts by the defendants is also difficult to compensate financially, as the acquisition transactions have a long-term effect; their reversal is much more difficult for the applicants than for the defendants who are contractually involved in these transactions.

IPPT20230622, UPC CFI, LD Düsseldorf, myStromer v Revolt Zycling

Ex parte provisional injunction regarding Germany, the Netherlands, France and/or Italy and seizure of goods suspected of infringement. Direct and literal infringement of the patent by the contested embodiment not substantially disputed in the protective letter. No exhaustion because respondent is not licensed to create from components supplied by Fairy Bike a combination falling within the scope of protection of the patent. Urgency of the action due to the already running leading European trade fair "Euro Bike 2023" and no earlier knowledge of detailed technical design of contested embodiment evident. Only provisional award of court costs, since the applicant did not explain in detail the amount of its costs quantified at EUR 16.000.  Provisional measures granted without hearing the defendant because of likelihood of irreparable harm. It is obvious that the exhibition of the contested embodiment at this trade fair can lead to a hardly reversible loss of sales or market shares of the applicant. The products of both parties are substitutable, direct competitors.