Rule 212 – Order on provisional measures without hearing the defendant

1. The Court may order provisional measures 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. Rule 197 shall apply mutatis mutandis.

2. Where provisional measures are ordered without the defendant having been heard, Rule 210 shall apply mutatis mutandis to the oral hearing without the presence of the defendant. In such cases, the defendant shall be given notice of the provisional measures without delay and at the latest immediately at the time of execution of the measures.

3. The defendant may request a review. Rule 197.3 and .4 shall apply mutatis mutandis.

Relation with Agreement: Article 60(5) and (6)

Case law

IPPT20240124, UPC CFI, LD Düsseldorf, Ortovox Sportartikel v Mammut Sports
Separate CMS workflow for review of ex parte provsional measure. Defendant’s request for review of an ex parte provisional measure (Rule 212(3) RoP) is to be resubmitted in the appropriate separate workflow provided by the CMS. The re-upload is for purely technical reasons, without affecting the time of receipt of the pleadings.

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. 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.). 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 (Annexes KAP 15 and KAP 16). 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

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

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.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.