On June 1, 2023, the Agreement on a Unified Patent Court (UPCA) entered into force. (In June last year, we ran a series of articles marking the first birthday of the Unitary Patent and UPC, which you can read here.) Since then, the Courts of First Instance have received a plurality of cases, including several applications for provisional measures, preserving evidence and orders for inspection.
Moreover, the Court of Appeal of the Unified Patent Court has already issued orders in proceedings for provisional measures.
Provisions relating to provisional and protective measures under the UPCA are stipulated by Article 62 UPCA wherein Article 62(2) UPCA establishes that the Court shall have the discretion to, in particular, take into account the potential harm for either of the parties resulting from the granting or the refusal of an injunction. Furthermore, Article 62(4) UPCA concludes that the Court may require the applicant, i.e. the party requesting an order for provisional injunction, 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.
The above requisites relating to the balance between the parties, as well as the requirement of a sufficient degree of certainty, are also reflected in the Rules of Procedure of the Unified Patent Court, see e.g. Rule 211.2 and 211.3 thereof.
The orders in proceedings for provisional measures issued by the Court of Appeal of the Unified Patent Court to date indicate that the Court of Appeal envisages that relatively thorough assessments be carried out when establishing whether or not the requisite “sufficient degree of certainty” of Article 62(4) UPCA is complied with.
For instance, in UPC_CoA_297/2024, it was concluded that it was not more likely than not that the patent in question was infringed, as a consequence of which the provisional injunction of the Local Division was lifted. Moreover, UPC_CoA_335/2023 concluded that it was more likely than not that an independent claim of the subject patent lacked an inventive step, the consequence of which again being the lifting of a previously granted order for a provisional injunction.
As may be realized from the above, a party filing an application for provisional measures under the UPC should be prepared for a detailed assessment of patentability and infringement, respectively, even during the relatively brief proceedings dealing with the provisional measures as such.
On the other hand, assuming that a party is successful in requesting an order for provisional measures, the measures available under the UPCA offer powerful tools for many players on the European market.
Please feel free to contact any of the Rouse teams in Sweden, Denmark or Germany for advice relating to the UPCA.
