LD Brussels, March 21, 2025, order on application for provisional measures, UPC_CFI_582/2024

The preliminary objection pursuant to R. 19.(b) RoP relates to proceedings on the merits. This is based on procedural economy and the (extended) timeframe within which the
parties in infringement actions, revocation actions and actions for declaration of non-infringement must present their arguments. An application for “provisional” measures does not follow such an extended timeframe, because the procedure itself already follows an accelerated timeframe (“summary procedure”).

An applicant is expected to be diligent in seeking a remedy against the alleged infringer, having gathered all necessary evidence, from the moment the infringement began or from the time the applicant became aware of said infringement. If the applicant has acted negligently or hesitated in requesting provisional measures after gathering all the necessary elements for a promising legal action (from an objective standpoint), it must be concluded that the applicant was not genuinely interested in promptly enforcing its rights. In such circumstances, it would be inappropriate for the Court to grant the requested provisional legal protection.

Since the UPC has substantive jurisdiction to hear infringement actions or provisional measures for European patents (Art. 3(c) UPCA in conjunction with Art. 32(1)(a) or (c) UPCA), it is not the date of the registration of the unitary effect that should be considered as the objective earliest date for filing an action with the UPC (either an action for infringement (Art. 32(1)(a) UPCA) or an action for provisional measures (Art. 32(1)(c) UPCA), but the date when the European Patent was granted.