Key takeaways
Pursuant to R. 197.1 RoP, the Court may order measures to preserve evidence without the defendant having been heard. R. 197.3 RoP specifies a review process by the defendant. The LD Brussels finds that this review is a two-step process: (1.) Was the ex parte order rightly issued considering the facts and evidence brought forward in the application or considered known by the applicant? (2.) Considering all facts and evidence presented by the parties, should the order be confirmed, modified or revoked?
Pursuant to R. 197.1 RoP, the Court may order measures to preserve evidence without the defendant having been heard, in particular where any delay is likely to cause irreparable harm to the applicant or where there is a demonstrable risk of evidence being destroyed or otherwise ceasing to be available.
R. 197.3 RoP specifies a review process of this order: within 30 days after the execution of the measures, the defendant may request a review of the order to preserve evidence. The Request for review shall set out: (a) the reasons why the order to preserve evidence shall be revoked or modified; and (b) the facts and evidence relied on.
In this decision, the LD Brussels outlines the framework for reviews of ex parte orders for preservation of evidence or inspection under R. 197.3 RoP:
In a first step, the Court should assess whether the ex parte order was rightly granted based on the facts presented in the application and, additionally, facts which were either public or not public, but could reasonably considered to be known by the applicant. As part of this assessment, the Court should consider whether failing to bring these facts and evidence to its attention could be considered a breach of the applicant’s duty to disclose any material fact that could influence the Court’s decision (R. 192.3 RoP)
Then, in a second step, the Court should assess whether the order should be confirmed, modified or revoked, considering all facts and evidence provided by the parties (i.e.: also the respondent of the application to preserve evidence/for inspection). This assessment relates to the substantive assessment for the conditions for granting the order for preservation of evidence or inspection per Art. 60 (1) and (3) UPCA as well as the scope of the order.
For the assessment under Rule 197.3 RoP the Court should place itself on the date of issuance of the order to preserve evidence/for inspection.
The date of issuance is the date on which the Court made the ex parte assessment based on the submission of the applicant or could have made the assessment on the submissions both parties, if the proceedings had been dealt with inter partes from the outset.
Since the Court should place itself at the date of issuance of the order for the assessment under Rule 197.3 RoP, the assessment cannot take into account the execution of the order to preserve evidence/for inspection, the outcome of such execution, or any information or evidence gathered during such execution.
The term “about to be infringed” in Art. 60(1) UPCA and Art. 60(3) UPCA does not have the same meaning as “urgency” (in the sense of R. 194(2) RoP), nor “unreasonable delay” (in the sense of R. 211.4 RoP), nor “threatened infringement” (in the sense of R. 13.1(l)(i) RoP).
According to the Court, the applicable legal standard is “a certain degree of plausibility of the patent being infringed or about to be infringed”. There must be a risk of infringement and it must be apparent that it will occur in the future. The specific facts of the case will determine the duration of this period.
Division
LD Brussels
UPC number
UPC_CFI_407/2025, UPC_CFI_408/2025
Type of proceedings
Review proceedings, order to preserve evidence, order for inspection
Parties
Applicants (Review Proceedings):
Organon Heist B.V.
NV Organon
Defendants/Respondents (Review Proceedings):
Genentech Inc.
F. Hoffman – La Roche AG
Patent(s)
EP 3 401 335 B1
Body of legislation / Rules
Art. 60 UPCA, Rule 192 RoP, Rule 194 RoP, Rule 196, Rule 197 RoP, Rule 199 RoP
