Key takeaways
For late-stage interim relief requests (Art. 62 UPCA, R. 206-211 RoP), urgency has a specific meaning: the applicant must prove a new, escalating risk justifying immediate action.
Applications for provisional measures are admissible at any stage of main proceedings, even towards the end, as there is no legal limitation under R. 206.1 RoP.
However, when filing an application for provisional measures when main proceedings are already pending, the applicant must prove new, supervening facts showing an objective deterioration of the situation. A mere continuation of infringement or increasing financial loss is insufficient to establish urgency.
The court assesses if the applicant can be reasonably expected to await the final decision on the merits. If so, the application may be dismissed, as the main proceedings are the standard procedure.
It is in particular not sufficient to substantiate these circumstances merely by demonstrating an increase in financial loss. Once infringement has commenced, the progressive accumulation of economic damage during proceedings – without the injured party having sought urgent relief – is usually inherent, as patent infringement is often continued at least until a final order is issued. In other words, if the applicant chooses to seek protection of its rights within the time frames specific to the proceedings on the merits, the application for interim relief must be based on grounds going beyond a temporal aggravation related to the time required to reach a conclusion of the proceedings.
An alternative request for the defendant to provide security for damages faces serious admissibility concerns and, even if admitted, requires proof of deteriorating solvency, not merely a lack of local assets.
The court questioned the legal basis for such a request under the UPCA/RoP. Even if the request were found to be admissible by analogy to a precautionary seizure (Art. 62(3) UPCA, which provides for measures to seize assets), it failed on the merits. In particular, a request to order an alleged infringer to provide security for the recovery of future damages cannot succeed unless the applicant demonstrates concrete circumstances likely to endanger that recovery – for example an objective deterioration in the defendant’s solvency or financial position that has occurred or become apparent in the course of the the proceedings.
Division
LD Milan
UPC number
UPC_CFI_1129_2026 and UPC_CFI_1130_2026
Type of proceedings
Proceedings for provisional measures
Parties
Applicant: Telefonaktiebolaget LM Ericsson
Defendants: ASUSTeK Computer Inc., Arvato Netherlands B.V.
Patent(s)
EP 2 727 342 B1 (UPC_CFI_1129_2026) and EP 3 076 673 B1 (UPC_CFI_1130_2026)
Jurisdictions
UPC
Body of legislation / Rules
Art. 62 UPCA, R. 206 RoP, R. 209 RoP, R. 211 RoP
