Article 62Print this page
Provisional and protective measures
1. The Court may, by way of order, grant injunctions against an alleged infringer or against an intermediary whose services are used by the alleged infringer, intended to prevent any imminent infringement, to prohibit, on a provisional basis and subject, where appropriate, to a recurring penalty payment, the continuation of the alleged infringement or to make such continuation subject to the lodging of guarantees intended to ensure the compensation of the right holder.
2. The Court shall have the discretion to weigh up the interests of the parties and in particular to take into account the potential harm for either of the parties resulting from the granting or the refusal of the injunction.
3. The Court may also order the seizure or delivery up of the products suspected of infringing a patent so as to prevent their entry into, or movement, within the channels of commerce. If the applicant demonstrates circumstances likely to endanger the recovery of damages, the Court may order the precautionary seizure of the movable and immovable property of the alleged infringer, including the blocking of the bank accounts and of other assets of the alleged infringer.
4. The Court may, in respect of the measures referred to in paragraphs 1 and 3, require the applicant to provide any reasonable evidence in order to satisfy itself with a sufficient degree of certainty that the applicant is the right holder and that the applicant's right is being infringed, or that such infringement is imminent.
5. Article 60(5) to (9) shall apply by analogy to the measures referred to in this Article.
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.
Ex parte provisional injunction regarding Germany, the Netherlands, France and/or Italy and seizure of goods suspected of infringement.(article 62 and 29 UPC Agreement, Rules 206, 207, 209, 211 and 212 Rules of Procedure). 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.