LD Düsseldorf, October 17, 2025, Order in the proceedings for provisional measures, UPC_CFI_515/2025

The Court may issue a regular order for provisional measures based on the application for provisional measures, rather than a decision by default, when a defendant chooses not to lodge an objection within the time period set by the Court or fails to substantiate its objection for reasons outside of the proceedings. Firstly, R. 205 et seq. RoP do not provide for a decision by default in such cases. In addition, issuing a decision by default would grant the defendant who decided not to lodge an objection the advantage of a potential set-aside procedure (R. 356 RoP). This would also conflict with the applicant’s interest in effective patent enforcement in the PI proceedings.

LD Düsseldorf referred to the UPC case law concerning proceedings for provisional measures, requiring that it is “more likely than not” that the patent is infringed and valid (R. 211.2 RoP). The Court also emphasized the defendant’s burden of presentation and proof concerning lack of validity. In the present case, the defendant did not present any arguments against validity. In addition, the Court mentioned that the patent has not been subject of any nullity proceedings.

With regard to urgency, the applicant should only seek provisional measures if it has reliable knowledge of all the facts relevant to the case and can substantiate these facts. Moreover, the applicant should prepare for all possible procedural situations. However, unnecessary delays must be avoided. In the present case, the applicant did not act hesitantly: It became aware of potential patent infringement on April 10, 2025. The applicant then immediately consulted its counsel who ordered samples on the same day and received them on April 15, 2025. The samples were delivered to the applicant for testing on May 5, 2025. The applicant then tested the samples, reviewed and analyzed the results and subsequently discussed them with the team of internal and external counsel. The applicant had the corresponding evidence and analysis on May 28, 2025, and filed the application for provisional measures approximately two weeks later, on June 13, 2025.

Concerning the necessity of a PI, the Court considered the following facts: the parties are direct competitors, risk of permanent loss of market share, significantly lower price of the defendant’s products, figures and forecasts submitted by the applicant demonstrating the threat of significant damage, risk of further illegal resellers, and significant reputational harm to the applicant (due to possible association with defendant’s products which might be of lower quality).

An obligation to provide information may be ordered in the proceedings for provisional measures, if there is an urgent interest and these measures are proportionate. The Court confirmed this specifically for information concerning the origin and distribution channels as this information enables the applicant to prevent further infringement.