Enforce your patent before UPC

As patent proprietor, you may also request the order of provisional and protective measures to prevent imminent infringement or stop ongoing infringement of your patent in advance of a full decision on the merits (see above). This includes preliminary injunctions (PI) and orders to seize or deliver up suspected infringing products, but also orders to inspect premises and to acquire and preserve evidence.

a very powerful measure to stop ongoing or imminent infringements immediately by Court Order that temporarily restrains an accused infringer under penalty from certain specified acts (e.g., making, using, offering for sale, or importing a product). A PI is a provisional measure, awaiting a decision on the merits, and requires urgency. In addition, the applicant (patent owner) must establish the (imminent) infringement, i.e. show that it is ‘more likely than not’ that the patent is infringed.

PI Orders may also be granted ex parte (i.e. without hearing the infringer) in situations where hearing the other side 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. In extremely urgent situations, the Standing Judge of the UPC may order an ex parte PI within a few hours after the request was filed.
The speed of the proceedings is very high and deadlines for submissions are very short (e.g. the losing party has just 15 days to file an appeal).

Time goes to the essence of PI proceedings. In view of the urgency requirement, the applicant should be vigilant, not lose any time and immediately contact a lawyer as soon as he becomes aware of a situation that must be stopped immediately.

A particularly helpful tool for the patent owner to collect and preserve infringement evidence that is indispensable for subsequent patent infringement proceedings.

In particular, the Court may order to physically seize allegedly infringing goods and related documents as well as to preserve and disclose digital media and data and any passwords necessary to access them. It may also include the possibility of conducting on-site inspections.

To obtain such an order, the applicant (patent owner) needs to mention the exact location of the evidence where it is known or suspected with good reason.  The necessity of the inspection measure must be justified and the facts and evidence upon which the request is based must be presented to the court.

The Court will consider the urgency of the action and the probability that evidence may be destroyed or otherwise cease to be available. This may be the case if products are not available on the market but exhibited at a trade fair justifying an order ex parte. In ex parte proceeding does not require proof of the certainty of the loss or destruction of evidence, but only that there is a risk of even a partial loss of evidence.

The Court will specify a professional person or expert, who guarantees expertise, independence and impartiality who shall carry out the measures. For additional protection, the court may order secrecy measures.

In urgent cases, some protective measures (such as orders to inspect premises and orders to acquire and preserve evidence) may be granted even without hearing the (alleged) infringer first (hence, ex parte), with the aim of avoiding irreparable harm or loss of evidence.