Key takeaways
Ex parte evidence preservation and inspection orders may be granted if the applicant provides sufficient evidence of likely infringement (Art. 60 UPCA, Rules 192, 197.3 RoP).
The court will grant such orders without hearing the defendant if the applicant submits all reasonably available evidence supporting a likelihood of patent infringement or threat thereof.
The review of ex parte orders is strictly limited to the justification at the time of issuance (Rule 197.3 RoP).
New facts or arguments presented during the review are not considered unless they relate to the original evidentiary basis. An oral hearing is held to ensure the defendant’s right to be heard.
Sufficient probability of infringement is assessed based on a combination of factors (Art. 60 UPCA).
The court considers technical features, marketing materials, and prior statements by the defendant. The focus is on the general capability described in the patent, not specific parameters.
Lack of cooperation by the defendant can justify ex parte measures (Art. 60(5) UPCA).
The defendant’s failure to provide specific technical details, despite repeated requests, may lead the court to conclude that evidence could be at risk if the defendant is forewarned.
Additional confidentiality obligations are not imposed if procedural safeguards are sufficient (Rules 192 ff. RoP).
The court rejected the defendant’s request for further confidentiality measures, finding the existing framework adequate.
The losing party in review proceedings bears the costs (Rule 150 RoP).
The defendant was ordered to pay the costs after its application for review was unsuccessful.
Division
Local Division Munich
UPC number
UPC_CFI_63/2025
Type of proceedings
Review of ex parte order for evidence preservation and inspection
Parties
Applicant: Nanoval GmbH & Co. KG
Respondent: ALD Vacuum Technologies GmbH
Patent(s)
EP 3 083 107
Jurisdictions
UPC
Body of legislation / Rules
Rule 192 RoP, Rule 197.3 RoP, Rule 150 RoP
Art. 60 UPCA, Art. 60(5) and (6) UPCA
