Rule 197 – Order to preserve evidence without hearing the defendant

1. The Court may order measures to preserve evidence [Rule 196.1] 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 or otherwise ceasing to be available.

2. Where measures to preserve evidence are ordered without the defendant having been heard, Rule 195 shall apply mutatis mutandis to the oral hearing without the presence of the defendant. In such cases, the defendant shall be given notice, immediately at the time of the execution of the measures.

3. Within 30 days after the execution of the measures, the defendant may request a review of the order to preserve evidence. The Request for review shall set out: (a) the reasons why the order to preserve evidence shall be revoked or modified; and (b) the facts and evidence relied on.

4. The Court shall order an oral hearing to review the order without delay. Rule 195 shall apply. The Court may modify, revoke or confirm the order. In case the order is modified or revoked the Court shall oblige the persons to whom confidential information has been disclosed to keep this information confidential [Rule 196.1].

Relation with Agreement: Article 60(6)

Case law

Court of Appeal

IPPT20260316, UPC CoA, Ecovacs v Roborock
Proportionality of ex parte preservation of evidence (R. 1971. RoP). When R. 197.1 RoP is applied, it entails a proportionality test in the strict sense; meaning that a balancing is conducted with reference to the facts of the case. This involves weighing opposing interests. The weighing will normally come down to determining whether the requests are within a meaningful range, or if the operative part of the order must be limited in relation to what is requested to ensure proportionality. In rare cases this could result in denying the measures altogether, for example if the evidence to be preserved can be obtained in a less intrusive manner, rendering the sought measures disproportionate. Similarly, requests that are of a more speculative nature (fishing expeditions) in relation to the reasonably available evidence in support of the claim that the patent has been infringed or is about to be infringed, should be denied. 

Court of First Instance

IPPT20260123, UPC CFI, LD Düsseldorf, Van Loon Beheer v Inverquark
No basis for ordering a supplementary expert opinion following a detailed expert description regarding an ex-parte order for inspection and preservation of evidence. (Article 60 UPCA, Rule 196.4 RoP, Rule 197 RoP, Rule 199 RoP) It is incompatible to reach a decision on the timely release of the expert’s detailed description by requesting clarification of factual accuracy of the prepared description. Protection of the respondent does not require the obtaining of a supplementary expert opinion. Unredacted version of the expert’s description to be disclosed to the applicant in the absence of any confidentiality interests asserted by the respondent. (Rule 262A RoP)

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. 

IPPT20251219, UPC CFI, LD Düsseldorf, Lina Medical v Tonglu Qianyan
Following an order for preservation and inspection of evidence, the unredacted version of the detailed description provided by the expert is disclosed to the Applicant without giving the Defendant the opportunity to comment on confidentiality interests. (Article 60 UPCA, Rule 199, Rule 197, 196 RoP). Disclosure does not put the Defendant at an unreasonable disadvantage. The defendant cannot be reached via the CMS. Order was served on 18 November 2025, and the Defendant had been aware of the access code to the CMS. The Defendant had sufficient time to prepare for this situation and hand over the access code to a UPC representative. If the Defendant chooses not to do so, that is its own decision. This cannot be to the disadvantage of the Applicant.

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
 

IPPT20251112, UPC CFI, LD Brussels, Organon v Genentech
Ex parte orders to preserve evidence and for inspection confirmed (R 197.3 RoP. R. 199 RoP). A double assessment determines the scope of review proceedings. First, the Court should assess whether it has “rightly” decided to issue the “ex parte” Order. The Court should then assess whether the Orders are to be confirmed, modified or revoked. Facts and evidence to be taken into consideration include all facts and evidence  presented to the Court by the parties. (Rule 194.3(b) RoP). For both assessments the Court should place itself on the date of issuance of the Orders. The scope of the review assessment does not pertain to the actual execution of the Orders and/or the outcome of such execution or any information gathered during such execution. As such, the general purpose of an order to preserve evidence/for inspection is to: a) anable an applicant who has "presented reasonably available evidence to support the claim" to access additional information that is not publicly available to prove the infringement and the acts constituting infringement, and b) If granted, based on the preserved information, enable the applicant to evaluate the reliable prospects of success in initiating infringement proceedings. “About to be infringed” in Art. 60 UPCA does not have the same meaning as “urgency” (in  R. 194(2) RoP) or “unreasonable delay” in R. 211.4 RoP: must be a plausible a risk of infringement and it must be apparent that it will occur in the future. According to Art. 60(5) UPCA measures shall be ordered ex parte, where delay is likely to cause irreparable harm, or where there is a demonstrable risk of evidence being destroyed. “Ugency” is only one of the elements that the Court should consider when exercising discretionary powers and, therefore, cannot be considered a compulsory precondition for granting the requested measures “ex parte”.

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. The inspection is not limited to data being physically stored at the premises , it also extends to data which is accessible from there as long as such access is available as part of the ordinary business being carried out at such a location. A defendant cannot be compelled to bring a physical item which is not there yet , to the inspected premises , even though the applicant thought it was there. Inspection had been executed on a solid and sound ex ante presumption, that the item to be inspected may well be found at the location detailed in the order, but it turned out upon execution that the item was not there. The legal and factual situation after granting the Defendant its right to be heard justifies a revocation of the Saisie order as it could not have been granted, if these circumstances had been taken into consideration beforehand. 

IPPT20250922, UPC CFI, LD Düsseldorf, Otec v Steros
Ex parte order for inspection and preservation of evidence granted. (Art. 60 UPCA, Rule. 194 (d), 196, 197, 199 RoP). Credible demonstration that the patent may be infringed. (Article 60 (1) UPCA). The product, as exhibited at the EMO Hannover trade fair, makes use of the technical teaching of the patent. All features of the patent are realized in the "DLyte PRO500 Automated Cell" product. The application is urgent (R. 194. 2 b), c), 197 R.P.). There exists a serious risk that the product will be removed from the exhibition grounds at short notice. Due to special market conditions, it would be almost impossible for the applicant to obtain evidence of the infringement of the of the patent. Expert appointed to carry out the measures with the assistance of a bailiff. (Rule 196.4, .5 RoP). An order of security would unreasonably delay the preservation of evidence and inspection, considering the short duration of the trade show. 

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). 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).
 

IPPT20250528, UPC CFI, LD Munich, Nanoval v ALD Vacuum Technologies
Review of ex parte order to preserve evidence and inspection of 3 February 2025 unsuccessful (R. 197.3 RoP). Sufficient likelihood of infringement: The court currently has no evidence that a Laval nozzle does not allow grain sizes above 50 um. Nor does the respondent explicitly claim this. This circumstance, together with other circumstances mentioned in the order, was sufficient for the court to find that there was a sufficient likelihood of infringement. Unclarity protective letters (R. 207 RoP). Insofar as the respondent argues that the protective letters submitted by the respondent reveal the different nozzle shape of the EIGA Premium system, it is the respondent's failure to clearly state in any of the protective letters submitted which system or systems are referred to in these protective letters. It is not the task of the court to remedy this deficiency by comparing the respondent's submissions in the opposition proceedings by way of an overall interpretation of all the pleadings submitted in various proceedings and to interpret on this basis what the respondent might have meant. Legally incorrect assumption that an order under Article 60 UPCA must be set aside because the risk of destruction of evidence has not been sufficiently proven. Review under R. 197.3 RoP is limited to the question whether the measures were rightly order; in this context, the possible destruction of evidence is irrelevant.

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) As the applicant has explained in a comprehensible manner, there is a serious risk that the ‘DLyte 1D’ and ‘DLyte 100D’ will be removed from the exhibition grounds at short notice or that individual polishing processes pre-programmed by the first respondent will be deactivated by means of a software update. This could result in the loss of evidence that could be used to confirm the infringement. Due to the special market conditions already described in detail, it would be virtually impossible for the applicant to obtain evidence of the infringement of the patent in question by the aforementioned products. 

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. No demonstrable risk of destruction of evidence (Article 60.5 UPCA) because of the mere digital format of the data but to ensure the effectiveness of the simultaneous  measures at the site of the manufacturer and that of the operator of the allegedly infringing oven. No lack of urgency (R. 194.2 RoP): a two-month period to prepare the application for preservation of evidence appears reasonable, as the applicant for seizure is required under Article 60.1 UPCA to present reasonably accessible evidence to support its allegations that its patent has been infringed or that infringement is imminent.

IPPT20250122, UPC CFI, LD The Hague, Mammoet v P.T.S.
Ex parte order for preserving evidence at former supplier, non-cooperating after cease-and-desist letter: detailed description, physical seizure, preservation in print or copy of digital media; written report within ten business days from the date of execution of the order (Article 60.5 UPCA, R. 196 RoP, R. 197 RoP). Representatives only confidentiality club as requested: access to the Written Report is initially limited to the representatives of the Defendant only (R. 262A RoP). 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. Demonstrable risk of evidence being destroyed as the capture of data is one of the Applicant’s targets and it is generally accepted that digital data can be easily hidden or erased if previous notice is given of this kind of application, as is also mentioned above. Mammoet’s fear that evidence can easily be removed if the Defendant is informed or heard before the measure, is thus considered justified.

IPPT20241018, UPC CFI, LD Dusseldorf, Bekaert v Siltronic
Order for inspection and preservation of evidence granted  (Article 60 UPCA , Rule. 192 , 199 RoP) .The application is urgent and issued ex parte (Rule. 194.2 a),b),c)  197 RoP).Despite the pre-trial correspondence, the first respondent has neither issued a cease-and-desist declaration nor provided information about the manufacturer from whom it obtains the saw wires.  Without the application, the applicant will not be able to ascertain the origin of the wires that may infringe the patent. Once the stock of saw wires has been used up by the first respondent, the applicant will no longer be able to secure evidence and will not be able to examine the wires in question. It is not detrimental that the applicant has been aware of the wires since March 2024 and that the revocation of the opt-out was not registered until September 2025 however. Before the opt-out was revoked, the applicant was unable to file the application before the UPC. In view of the fact that the UPC is still a relatively new court system, the Chamber does not consider it detrimental to urgency at this stage if the party makes strategic considerations as to whether to submit a patent to the jurisdiction of the UPC and if these considerations take a certain amount of time.There is currently a risk that the respondent will transfer the remaining wires to one of its other production sites. 

IPPT20240925, UPC CFI, LD The Hague, DDT v Doytec
Ex parte order to preserve evidence (R. 197 RoP, Article 60(5) UPCA). Demonstrable risk of evidence being no more available once the SMT exhibition is over, for Doytec is based abroad and the technical and commercial documentation relating to C-1012 machine could easily be destroyed or otherwise ceasing to be available. The appointed expert (R. 196.5 RoP) shall lodge a written report, together with a full copy of all the documents acquired as a result of the execution of the measures, immediately and no later than two days after the completion of execution of the measures. The granting of an application for preservation of evidence or inspection of premises does not imply an unconditional order to disclose the evidence to the applicant (Article 60(1) UPCA). Pursuant to Article 60(1) UPCA the order must be subject to the protection of confidential information. 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. In this context, the Court must give the other party access to the evidence and must provide that party with the opportunity to request the Court to keep certain information confidential and to provide reasons for such confidentiality.

IPPT20240301, UPC CFI, LD Paris, Novawell v C-Kore Systems
Ex parte order to perserve evidence (Article 60(5) UPCA, Rule 196 RoP, Rule 197 RoP). Ex parte measures can be based on any of the criteria mentioned in Rule 197 RoP; no conflict with non-exhaustive list of article 60(5) UPCA. Demonstrable risk of evidence otherwise ceasing to be available (Rule 197(1) RoP). In the case at hand, the defendant, having been informed of an imminent seizure, could have made certain computer data unavailable or moved its product to a location other than its premises in Montpellier. 

IPPT20231114, UPC CFI, LD Paris, C-Kore Systems v Novawell
Ex parte measure granted to preserve evidence, detailed description, physicial seizure of product and technical and promotional documentation an a written report by expert appointed by the Court (Article 58 UPCA, Article 60 UPCA, Rule 196 RoP, Rule 197 RoP)

IPPT20230925, UPC CFI, LD Milan, PMA v AWM

Ex parte order to inspect premises and to preserve evidence; confidentiality (articles 58 and 60 UPCA, Rules 196, 197 and 199 RoP). Urgency: two Girderflex apparatus have allegedly already been sold; at the end of July, another machinery has been offered for sale; AWM will be also present as a confirmed exhibitor at the BIBM Congress in Amsterdam and the commercial offer is still ongoing on AWM’s website. Reasons for ex parte: Data capture is Claimant’s main target and it is generally accepted that digital data can be easily hidden or erased if defendants are given previous notice of this kind of application. Experts are included in the list of patent experts who are used to cooperate with the national Courts, so that the choice guarantees expertise, independence and impartiality, as required by rule 196.5 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.

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.