Key takeaways
A review under R.197.3 RoP only benefits the party that files it; co-defendants who do not seek review remain bound by the original order
The Court held that where only one of several defendants files a review application, the review can only affect the order vis-à-vis that defendant, analogous to the principle that an appeal by one party cannot benefit non-appealing co-parties.
Plausibility of infringement under Art. 60(1) UPCA requires a lower standard of proof than provisional measures or infringement proceedings on the merits
The applicant must make infringement plausible, a threshold lower than the “sufficient degree of certainty” required for provisional measures under R.205 RoP. Mere speculation is insufficient; the mechanism must not serve as a “fishing expedition” for evidence without basis in Art. 60 UPCA.
Uncertainty created by the defendant’s supplier, including silent product changes, ambiguous public documentation, and failure to update its website after termination of a distribution agreement, was held sufficient to make indirect infringement by the defendant plausible.
Ex parte preservation orders remain justified despite regulatory data retention obligations – temporary unavailability of evidence suffices
The risk of disappearance of evidence must be assessed by reference to probability or demonstrable risk under R.194.2(c) RoP, R.197.1 RoP, not certainty. Legal obligations to retain data do not prevent temporary transfer of data or physical samples outside the defendant’s sphere.
The duty to disclose material facts under R.192.3 RoP does not extend to facts internal to the defendant, disputed between the parties or immaterial to the order
Facts that are internal to the defendant, not publicly available, not reasonably known to the applicant, disputed between the parties, or not relevant to the Court’s decision are not encompassed by the duty of the applicant to provide reasonable available evidence to support the claim that the patent has been infringed or is about to be infringed.
Preservation measures are proportionate where test purchases are impractical in niche B2B markets with personalised distribution channels (Art. 3(2) Enforcement Directive)
The Defendant’s own confirmation that sales in the relevant market occur only person-to-person, not online, reinforced the Applicant’s argument that a test purchase would be impractical and would risk alerting the alleged infringer, thus supporting the proportionality of the measures ordered.
Division
Local Division The Hague
UPC number
UPC_CFI_2028/2025, UPC_CFI_2031/2025
Type of proceedings
Review of ex parte preservation of evidence order (R.197.3 RoP)
Parties
Applicant: AdvanSix Resins & Chemicals LLC
Defendants: Krahn Chemie Benelux BV; Reschem and Vicris
Patent(s)
EP 3 286 270
Jurisdictions
UPC
Body of legislation / Rules
R. 192.3 RoP, R. 194.1(d) RoP, R. 194.2 RoP, R. 194.3 RoP, R. 196(3)(b) RoP, R. 196(6) RoP, R. 197.1 RoP, R. 197.3 RoP, R. 198(2) RoP, R. 199 RoP, R. 205 RoP, R. 209.2(b) RoP, R. 284 RoP
Art. 60(1) UPCA, Art. 60(5) UPCA
Art. 3(2) Directive 2004/48/EC (Enforcement Directive)
Art. 7 Directive 2004/48/EC
