CoA, July 8, 2026, appeal decision regarding request for provisional measures, UPC-CoA-36/2026

When exercising its discretion under R. 222.2 RoP, the CoA weighs the justification for the late submission, its relevance to the appeal, and the position of the opposing party.

A party must explain why the evidence could not have been submitted in the first instance. The mere fact that assembling the evidence took time is insufficient where the party had ample opportunity to do so beforehand. Admitting a wholly new invalidity attack at the appeal stage – in the case at hand, shifting from reliance on the public availability of a video to the contested public prior use of the underlying software – would force the opposing party to defend itself in a single instance with limited means, unjustifiably damaging its procedural position.

Given the summary nature of proceedings for provisional measures (R. 205 RoP) and the tight time periods applicable (R. 209.1(a) RoP), there may in individual cases be reason to adopt a more lenient approach towards late‑filed submissions than in proceedings on the merits. There is less reason for leniency towards defendants who, while aware of the patent rights, launch their products at risk and who therefore should have been properly prepared for proceedings for provisional measures (Merz v Viatris, March 26, 2026, UPC_CoA_917/2025; Boehringer Ingelheim v Zentiva, August 13, 2025 UPC_CoA_446/2025 and UPC_CoA_520/2025).

As a general rule, an uncontested submission cannot be rejected on grounds of late filing (Belkin v Philips, October 3, 2025, UPC-CoA-534/2024; Hefei v Grundfos, May 27, 2026, UPC_CoA_622/2025 and UPC_CoA_623/2025). In respect to late-filed uncontested non-infringement arguments (made by the potentially infringing party e.g. by accepting the patent holder’s description of the attacked embodiment’s technical functionality), the main question remains whether the undisputed functionality is covered by the claim. Thus, such an uncontested submission does not reopen a factual dispute and can therefore be allowed by the Court in accordance with R. 222.2 RoP.

The submission of disputed non-infringement arguments filed late and without justification however, must be considered as inadmissible pursuant to R. 222.2 RoP since admitting it would compel the Court to reopen and resolve a factual dispute. The procedural consequence of the inadmissibility of the contested facts is that the potentially infringing party’s submission is thereafter treated as uncontested for the purposes of the appeal. Even though the facts are treated as uncontested, the Court must still determine whether the facts advanced justify the legal consequence for which they were submitted (Kodak v Fuji Film, April 17, 2025, UPC_CoA_312/2025 and 325/2025).

Proceedings for provisional measures are summary in nature and cannot substitute for a full examination on the merits; they are therefore only available where the nature of the case is such that proceedings on the merits cannot be awaited. Irreparable harm is not a necessary condition – necessity may arise from direct competition between the attacked embodiment and the patent holder’s product, where granting the injunction serves to maintain the status quo existing immediately before the alleged infringement.

Where a competitor introduces an infringing feature that disrupts a market situation previously characterised by a single provider, this move can be expected to lead to permanent market share erosion and lasting harm, particularly in a market where customers typically commit to one provider on a long-term basis. The difficulty of quantifying such damages does not justify refusing the injunction.

The balance of interests favours the patent holder where the infringer can readily revert to its prior, non-infringing offering (in the case at hand, the software without the recently launched infringing feature), and where any harm from a later reversal of the injunction in proceedings on the merits can be addressed through a subsequent claim for damages.