Rule 192 – Application for preserving evidence
Print this page1. An Application for preserving evidence may be lodged by a party (within the meaning of Article 47 of the Agreement) (hereinafter "the applicant") at the division where the applicant has commenced infringement proceedings on the merits. If the application is lodged before proceedings on the merits have been started it shall be lodged at the division where the applicant intends to start proceedings on the merits.
2. The Application for preserving evidence shall contain:
(a) particulars in accordance with Rule 13.1(a) to (i);
(b) a clear indication of the measures requested [Rule 196.1], including the exact location of the evidence to be preserved where it is known or suspected with good reason;
(c) the reasons why the proposed measures are needed to preserve relevant evidence; and
(d) the facts and evidence relied on in support of the Application. Where main proceedings on the merits of the case have not yet been started before the Court, the Application shall in addition contain a concise description of the action which will be started before the Court, including an indication of the facts and evidence which may be relied on in support.
3. Where the applicant requests that measures to preserve evidence be ordered without hearing the other party (hereinafter "the defendant"), the Application for preserving evidence shall in addition set out the reasons for not hearing the defendant having regard in particular to Rule 197. 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. The application shall not be entered on the register until notice has been given to the defendant pursuant to Rule 197.2.
4. Where the Application for preserving evidence is lodged after main proceedings on the merits of the case have been started before the Court, the Application shall be drawn up in the language of the proceedings. Where the Application is lodged before main proceedings on the merits of the case have been started before the Court, Rule 14 shall apply mutatis mutandis.
5. The applicant shall pay the fee for the Application for preserving evidence, in accordance with Part 6. Rule 15.2 shall apply mutatis mutandis.
Relation with Agreement: Article 60
Case law
Court of Appeal
IPPT20260316, UPC CoA, Ecovacs v Roborock
Revocation of ex parte inspection order confirmed. Duty to disclose any known material fact which might influence the Court (R. 192.3 RoP). Is there so that the Court can take due account of the interests of both parties, in spite of having to rely only on the facts presented in the Application. Representatives are generally obliged not to misrepresent facts (R. 284 RoP). Imposes a heightened requirement where the applicant must disclose, and not leave out, any material facts that might be relevant for an ex parte order. This includes (for example) facts that may be relevant for the proportionality assessment. Ex tunc review: Omissions and distorted accounts of material facts which might be of central importance for the Local Division’s assessment on whether to allow the request at all cannot be compensated or circumvented by later submissions. The possibility that other grounds might have existed cannot retroactively justify the Application. Facts introduced later by the applicant in support of the Application shall be disregarded on review.
IPPT20260204, UPC CoA, Centripetal Limited v Palo Alto Networks
Request to maintain the Saisie Order to the extent outlined in Exhibit A1 is inadmissible (R. 192 RoP, R. 222.2 RoP). The form in which Centripetal seeks to have the Saisie Order “maintained” […] broadens the scope of the order. The Saisie Order concerned the preservation of evidence at an office located at Rosenheimer Straße 143c in Munich. In the amended form, however, the scope of the order includes documents that are not available at the location of this office. Centripetal seeks the production of documents irrespective of their location. In addition, the detailed descriptions that Palo Alto would be required to provide under requests 1 a) aa) and bb) of the amended request cover a broader – or at least a less clearly defined – category of documents than the technical documentation, internal development records and manuals referred to in the original application. Appellant failed to provide any justification for not submitting the amended request during the first instance proceedings.
IPPT20240723, UPC CoA, PMA v AWM
Application to preserve evidence or inspect premises implies a request to disclose the outcome of the measures (evidence) to the applicant and the procedure aims not merely to preserve evidence but also to disclose the evidence to the applicant (Article 60 UPCA, Rule 192 et seq. RoP). Order to preserve evidence or inspect premises must be subject to the protection of confidential information (Rule 196 RoP). Where the evidence may contain confidential information, this entails that the Court must hear the other party before deciding whether and to what extent to disclose the evidence to the applicant. The Court must hear the other party on the request for disclosure even if this party has decided not to file a remedy against the order to preserve evidence or inspect premises. For the revocation or otherwise ceasing to have effect of the measures (Article 60(8) UPCA) the Court must, as a general principle, specify in its order a time period that starts to run from the date of disclosure of the evidence to the applicant or from the date on which the Court has made a final decision not to grant the applicant access to the evidence.
IPPT20250528, UPC CoA, Centripetal v Palo Alto
Order rejecting application for the preservation of evidence dated 3 March 2025 revoked and referred back to the Court of First Instance. (Rule 192 RoP). Standard of proof for orders for provisional and protective measures. (Art. 62, Art. 60 UPCA, R. 198 or R. 213 RoP). Since such orders are issued by summary proceedings where parties have limited opportunities to present facts and evidence, the standard of proof must not be set too high. At the same time, it must not be set too low in order to prevent the defendant from being harmed by an order for a provisional or protective measure that is revoked at a later date. The purpose of an application for preservation of evidence differs from that of an action on the merits. (Article 60 UPCA). If the same standard of proof were applied to an application for preservation of evidence as to an action on the merits, the procedure established by Art. 60 UPCA would lose much of its practical utility . The requirement under Art. 60(1) UPCA to provide reasonably available evidence to support the claim that the patent has been infringed or is about to be infringed is therefore a lower bar than the burden of proof for a claimant in an infringement action. The bar is in particular lower with respect to those aspects of the alleged infringement for which no evidence is reasonably available to the applicant, and for which the orders to preserve and disclose evidence are therefore particularly relevant. Mere speculation that the patent has been infringed, is generally not sufficient to justify an order to preserve evidence. Necessity requirement . A fair balance must be struck between the fundamental rights of the defendant and those of the applicant. (R. 192.2 and R. 199.2 RoP). It follows that the procedure under Art. 60 UPCA can only be used if, and to the extent that, it is necessary for the effective enforcement of a patent. Accordingly, the applicant must provide, in its application, the reasons why the proposed measures are needed. Where the preservation of evidence can be implemented by several equally effective measures, the measure that is least prejudicial to the defendant should be preferred.
Court of First Instance
IPPT20251219, UPC CFI, LD Düsseldorf, Ecovacs v Roborock
Ex- Parte order for inspection and preservation of evidence revoked on review, with the exception of confidentiality orders. (Rule 197.3, 197.4 RoP). The submission for an ex parte order must be complete and must not mislead the Court, (Rule 192.3 RoP). If there has been a breach of Rule 192.3 RoP, the question of whether the order can still be upheld in part does not arise. In these cases, the order is deemed to has been issued unlawfully.
IPPT20251118, UPC CFI, LD Düsseldorf, Lina v Schultz
IPPT20251118, UPC CFI, LD Düsseldorf, Lina Medical v Tonglu Qianyan
Ex- Parte order for Preservation and inspection of evidence granted (Art. 60 UPCA, R 192, R. 194 (d), 197, 199 RoP). Applicant has credibly demonstrated that the “disposable morcellator“, exhibited at the MEDICA exhibition in Düsseldorf, makes use of the teaching of the patent in suit . All features set out in claims 1 to 6 of the patent are implemented. With the exception of the labelling, the product which is presented by the Defendant is identical in appearance to the American product examined by the Applicant. The Applicant has demonstrated why the proposed measures are needed to preserve evidence without hearing the Defendant.
IPPT20251117, UPC CFI, LD Düsseldorf, Komax v Jiangsu
Ex – parte order for inspection and preservation of evidence granted for the respondent’s exhibition booth at an upcoming trade fair, pending validity proceedings. (Rule 192, Rule 194, Rule 197, 199 RoP). The “BZW3005” machine, which is expected to be exhibited at “Productronica” in Munich, may make use of the technical teaching of of the patent
IPPT20251030, UPC CFI, LD Düsseldorf, Van Loon v Inverquark
Ex-parte order for inspection and preservation of evidence granted. (Article 60 UPCA, Rule 192 ,196 RoP). Order issued ex parte : demonstrable risk that evidence would be destroyed or would no longer be available.(Rule. 192.3, 197 RoP)There is a serious risk that the "InverJet" will be removed from the exhibition grounds at short notice. it would be almost impossible for the applicant to obtain evidence of what it considers to be an infringement of the patent in question by the aforementioned product.
IPPT20251002, UPC CFI, LD Mannheim, Centripetal Limited v Palo Alto Networks
Review proceedings concerning an ex–parte order (Sasie order) for preservation of evidence. (Rule 197 RoP). Order dated 3 June 2025, in the amended form of Order dated 9 July 2025 revoked for confidentiality measures. It is based on a manifestly wrong construction of R. 192.3 RoP to believe that the duty to inform the Court of all relevant facts was a one-off duty and that there was no reason to update the Court on new facts and arguments, which might still influence the Court in its decision to grant or not to grant the Saisie order.
IPPT20250904, UPC CFI, LD Düsseldorf, Ecovacs Robotics v Roborock
Detailed ex parte order to preserve evidence and inspect premises (Article 60 UPCA, R. 194.2a RoP, R. 196 RoP, R. 197 RoP, R. 199 RoP). Even an imminent infringement in Germany is sufficient to establish the local jurisdiction of the German Local Divisions (Article 32(1)(c) UPCA, Article 33(1)(a) UPCA). In view of the circumstances of the case […] it is possible that the contested embodiments will be exhibited at IFA 2025 and that they will make use of the technical teaching of the patent in suit. The applicant, who is the owner of the patent application and has standing to sue, has provided a comprehensible explanation, based on an expert statement (Exhibit JD 10) and various product documents (Exhibits JD 7 to 8, Exhibits JD 11 to 14), as to why it assumes that all features of the patent application are realised in the contested embodiments. The order was to be issued ex parte pursuant to R. 192.3, 197 RoP. Otherwise, there would be a demonstrable risk that evidence would be destroyed or would no longer be available for other reasons (R. 197.1 Alt. 2 RoP).
IPPT20250725, UPC CFI, LD Mannheim, Centripal v Palo Alto
No breach of inspection order. The order of the CoA […] can only be construed so as to limit the inspection to the system actually being present at the premises of the order. (Art. 60 (3) UPCA, R. 199 RoP, R. 192.2(b) RoP). Defendant was under no obligation to increase the access rights of a mere sales person working at the premises detailed in the order to a level which would allow him to have access to the encrypted network security solution Claimant wished to monitor in real-time, if such increase of rights of the employee concerned is not necessary to have him carry out his duties required in his particular position as submitted by Defendant.
IPPT20250603, UPC CFI, LD Mannheim, Centripetal Limited v Palo Alto Networks
Ex parte order to preserve evidence and inspect premises after case is referred back by Court of Appeal (Article 60 UPCA, R. 192 RoP, R. 243 RoP). After referral back by the CoA, the court is bound by the order of the CoA (R. 243.2 RoP) as far as the CoA ruled on the addressed issues and orders as follows accordingly hereinafter. It is referred to the reasoning of the CoA’s order. As the CoA did not decide on the question whether or not the execution of the order - [...] - may only take place after defendant was informed [...], the CFI had discretion to decide under R. 196.3 RoP, whether immediate enforcement nonetheless is proportionate on the instant facts or whether the enforceability has to be put under further conditions. Justified to allow the defendant a limited time of two hours to be able to reach out to a lawyer of his choice to attend the setting up and monitoring as described hereinafter
IPPT20250530, UPC CFI, LD Brussels, Genentech v Organon
Ex parte order to preserve evidence (R. 192 RoP) and order for inspection (R. 199 RoP) (Article 60 UPCA), appointment of independent experts, subject to confidentiality circle, time limits procedure on the merits, € 25.000 security and limited use of the outcome of the measures. The order to preserve evidence and inspect premises allows the execution at the premises of ORGANON NL and ORGANON BE regardless of whether third parties own any material (including servers) to be found at their premises. Standard of proof: "a certain degree of plausibility of the infringement or the threat thereof" [...]. he same certain degree should be considered when assessing the validity of the patent. This “certain degree” is practically translated by the Court as making it “highly likely”. As such, the standard of proof for Applicants is lower compared to infringement actions (on the merits) and preliminary measures actions. Applicants should not already prove infringement, as this would render the order for preservation of evidence/access meaningless. € 25.000 security for combined order to preserve evidence and inspect premises (Article 60(7) UPCA, R. 196 RoP). Although Art. 60(7) UPCA does not seem to allow the court to make the execution of an order for inspection conditional on a security (see § 30), the Applicants' requests are of such a nature that they combine an order to preserve evidence and an order for inspection.
IPPT20250326, UPC CFI, LD Düsseldorf, Otec v Steros
Ex parte order to preserve evidence and inspection at trade fair in Cologne (R. 192 RoP, R. 199 RoP). Demonstrable risk of evidence being destroyed (R. 197.1 RoP) No security ordered in this specific case (R. 196.6 RoP)
IPPT20250324, UPC CFI, LD Paris, Tiru v Maguin
Review dismissed of ex parte order to preserve evidence and inspect premises (R. 197.4 RoP). No breach of duty to disclose any known material facts (R. 192.3 RoP): Patent holder cannot be required, at the stage of the application for preservation of evidence, to respond in advance to possible attacks on the validity of the patent, without prejudice, at the stage of the substantive proceedings, to discussing and deciding on a possible application for revocation of the patent.
IPPT20250303, UPC CFI, LD Mannheim, Order to preserve evidence rejected
Order to preserve evidence rejected. No sufficient degree of substantiation that that there is a sufficient degree of probability that infringement of the asserted claim combination can be found (Article 60 UPCA, R. 192.2 RoP). Required, if multiple ways are equally open to achieve the technical result, that facts are submitted which suggest that the result is being achieved by using the solution as patented and/or elaborating on alternative solutions and explain why it is rather to be excluded that these solutions are being implemented. These standards are of tantamount relevance in cases like the present one, where the application had been lodged before bringing an action on the merits of the case so that the court cannot refer to the main briefs to inform itself upon the arguments exchanged on infringement (cf. R. 192.2 RoP).
IPPT20241018, UPC CFI, LD Dusseldorf, Bekaert v Siltronic
Order for inspection and preservation of evidence granted (Article 60 UPCA , Rule. 192 , 199 RoP) . Applicant has credibly demonstrated that the patent may be infringed by the respondent (Art. 60 (1) UPCA). It is possible that the first respondent uses saw wires suspected of infringing the patent application in its production and that the second respondent stores said saw wires. The applicant found a wire from Sunnywell at a disposal site used by the first respondent. The supplier, did not deny the use of the saw wires, but merely stated that that it would no longer use products from the Sunnywell company in future. The application is urgent and issued ex parte (Rule. 194.2 a),b),c) 197 RoP).
IPPT20230921, UPC CFI, LD Brussels, OrthoApnea
Ex parte order to preserve evidence at symposium (article 60 UPCA). Urgency and irreparable because evidence may soon no longer be available in the territory. Ex parte (Rule 197(1) RoP): The applicant has sufficiently explained that irreparable damage may be caused to if the defendant is heard, because it is feared that in that case the infringing products will no longer be available at the symposium (Rule 192(3) RoP). No reason for a confidentiality regime as no seizure of confidential materials is sought and seizure will be made of materials publicly available at a symposium. No legal basis for order that the defendant has to cooperate. Counsel and a technical adviser of applicant allowed to be present.
IPPT20230614, UPC CFI LD Milan, Oerlikon v Bhagat
Ex parte order to preserve evidence at a trade fair (Article 60 UPCA, R. 192 RoP, R. 194 RoP). Prima facie case. For an order preserving evidence, only indicia of infringement are required to justify preservation of evidence, Photos, technical opinion, and video evidence suggest reproduction of patented features (i.e. infringement). Formal requirements for evidence preservation (R. 192 RoP). Claimant must provide a clear identification of measures and location. In this request the evidence targeted at the defendant’s trade fair stand. Claimant must establish the necessity of measures established. This is linked with establishing likelihood of infringement. Urgency. The allegedly infringing activity was ongoing at the trade fair and was about to end. This causes extreme urgency. A risk of loss of evidence is established as it could disappear after the event, especially given the defendant’s foreign location. Consequently, it is not necessary to hear the other party. Security (R. 196.6 RoP): No prior guarantee imposed due to the urgency and non-intrusive nature of the measure.
IPPT20230613, UPC CFI, LD Milan, Oerlikon v Himson II
Ex parte order to preserve evidence at trade fair (Article 60 UPCA, Rule 192 RoP). Extreme urgency exists considering that the international trade fair where the offending conduct is taking place started on 8.6.2023 and ends, tomorrow, on 14 June 2023. The prerequisites of Articles 197(1) RoP and 60(5) UPCA for the ex parte granting of the measure are met, since (a) time constraints do not allow the parties to be convened before the end of the trade fair tomorrow; (b) there is a risk that the evidence will no longer be accessible to the claimant once the exhibition is over, since the defendant is based abroad and the documents indicated are easy to conceal and/or destroy. Payment of fees (Rule 192(5) RoP, Rule 371(1) RoP: The Tribunal notes that pursuant to Section 371(3) RoP, in cases of urgency, when advance payment is not possible, the applicant's counsel must pay the fixed contribution within the time limit set by the Tribunal: in light of this limitation, the applicant must be ordered to pay this contribution by 15 June 2023.
