Key takeaways
Assessment of validity of the patent in proceedings for provisional measures
In proceedings for provisional measures, the panel must assess, based on the submissions of the parties, whether the validity challenges raise reasonable doubts about the validity of the asserted patent, Article 62(4) of the UPCA in conjunction with Rule 211.2 of the Rules of Procedure (RoP).
Allocation of a technically qualified judge in proceedings for provisional measures
According to Article 8(5) UPCA, the panel has in general, and thus also in proceedings for provisional measures, the right to request an allocation of a technically qualified judge on its own initiative, where it deems this appropriate. The allocation of a technically qualified judge is considered appropriate if the defendant extensively discusses the validity of the asserted patent in the grounds of its requested review of the order. If the local division decides to also issue a decision on a (potential) counterclaim for revocation in the main proceedings following the proceedings for provisional measures, it is mandatory to allocate a technically qualified judge. It therefore seems reasonable and advisable to involve this judge in the summary proceedings as well.
Division
Duesseldorf Local Division
UPC number
UPC_CFI_452/2023
Type of proceedings
Provisional measures, summary proceedings
Parties
Ortovox Sportartikel GmbH
Mammut Sports Group AG
Mammut Sports Group GmbH
Patent(s)
EP 3 466 498
Body of legislation / Rules
Rule R. 212.3 RoP, Rule 197.3 RoP, Rule 197.4 RoP
