Key takeaways
For the assessment of urgency it is relevant when the applicant was able to physically obtain and examine the potentially infringing product
Information obtained earlier is only relevant if such information (e.g. drawings) allow applicant to determine with sufficient certainty whether the potentially infringing product is infringing the patent in suit.
The applicant of preliminary measures is not obliged to assert all potentially infringed patents in one application. However, if the patent holder becomes aware of potential infringing actions, the patent holder is expected to investigate with due diligence and take action against all potential infringements.
The Court must take into account any undue delay on the part of the applicant in filing a motion for preliminary measures. However, the applicant is not obliged to assert all patents in one application if the applicant does not have the necessary information for all of the allegedly infringed patents.
There is no undue delay on the part of the applicant if the applicant is unable to determine with certainty the infringement of the asserted patent. A tight control of the distribution structure of the respondent might incur difficulties in obtaining an allegedly infringing embodiment.
Disclosure of drawings of the attacked embodiment may be insufficient to assess infringement if the drawings fail to provide the necessary insight. In such cases, obtaining a physical product is essential to determine with sufficient certainty whether the asserted patent is infringed.
Division
LD Hamburg
UPC number
UPC_CFI_1535/2026
Type of proceedings
Request for preliminary measures
Parties
Applicant: Cilag GmbH International
Respondent: RiVOLUTION GmbH, Shanghai International Holding Corporation GmbH
Patent(s)
EP 2 615 984
Jurisdictions
Germany, France, Italy
Body of legislation / Rules
Art. 32(1)(c), 62(1), 67 UPCA, R. 206.1, 211.1 RoP
