Rule 206 – Application for provisional measures

1. An Application for provisional measures may be lodged by a party (hereinafter "the applicant") before or after main proceedings on the merits of the case have been started before the Court.

2. An Application for provisional measures shall contain:

(a) particulars in accordance with Rule 13.1(a) to (i);

(b) a indication of the provisional measures which are being requested [Rule 211.1];

(c) the reasons why provisional measures are necessary to prevent a threatened infringement, to forbid the continuation of an alleged infringement or to make such continuation subject to the lodging of guarantees;

(d) the facts and evidence relied on in support of the Application, including evidence to support the claim that provisional measures are necessary including the matters referred to in Rule 211.2 and .3; and

(e) a concise description of the action which will be started before the Court, including an indication of the facts and evidence which will be relied on in support of the main proceedings on the merits of the case.

3. Where the applicant requests that provisional measures be ordered without hearing the other party (hereinafter "the defendant"), the Application for provisional measures shall in addition contain:

(a) the reasons for not hearing the defendant having regard in particular to Rule 197; and

(b) information about any prior correspondence between the parties concerning the alleged infringement.

4. 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 including any pending proceedings and/or any unsuccessful attempt in the past to obtain provisional measures in respect of the patent.

5. Rule 14 shall apply mutatis mutandis. The applicant shall pay the fee for the Application for provisional measures, in accordance with Part 6. Rule 15.2 shall apply mutatis mutandis.

Relation with Agreement: Articles 32(1)(c) and 62

Case law:

Court of Appeal

IPPT20240226, UPC CoA, Nanostring v 10x Genomics II

A distinction must be made between the formal requirements of Rule 206(2)(a) RoP (checked by the Registry) and the substantive requirements of Rule 206(2)(b) to (e) RoP (checked by the court). Formal requirements shall be examined by the Registry as soon as possible (Rule 208(1) RoP, Rule 16(2) RoP). If deficiencies are not corrected within 14 days a decision by default may be issued (Rule 16(5) RoP, Rule 355(1)(a) RoP). The substantive requirements concern the merits of the application for provisional measures and must be considered by the judge when making orders (Rules 209, 211 and 212 RoP). In the context of the orders to be made by the judge in the exercise of his discretion, non-compliance with the requirements set out in R. 206.2(b) to (e) RoP may be to the detriment of the Applicant. The alleged breach of R. 206.2(c), (d) and (e) RoP does not render the application inadmissible. In the present case, the Appeal has also not shown that the Court of First Instance - erroneously in law - did not consider the non-compliance with the requirements of Rules 206.2(b) to (e) RoP in its discretionary decision..
Applicants 2 are entitled to file the application for provisional measures. Due to their corresponding entry in the Register for Unitary Patent Protection, Applicants 2 are to be treated as the proprietor of the patent at issue (Rule 8(4) RoP, Article 47(1) UPCA. According to the findings of the Court of First Instance, which are not contested in the Appeal, Applicant 1 is in any case entitled to file an application as the holder of a non-exclusive licence granted to it by Applicants 2 under Art. 47(3) UPCA. 

Court of First Instance

IPPT20240430, UPC CFI, LD Düsseldorf, 10x Genomics v Curio Bioscience
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.