CoA, July 15, 2025, review of orders to preserve evidence, UPC_CoA_327/2025, UPC_CoA_002/2025

It is necessary to distinguish between the assessment of urgency in the context of an application for preserving evidence (R. 194.2(a) RoP) and the assessment of urgency in the context of an application for provisional measures (R. 209.2(b) RoP). In exercising its discretion to determine whether provisional measures should be ordered, the Court shall also have regard to any unreasonable delay in seeking provisional measures (R. 211.4 RoP). No such requirement is imposed either by the UPCA or by the RoP when assessing whether an application for preserving evidence should be granted.

The risk of the destruction or unavailability of evidence must be assessed with reference to probability (R. 194.2(c) RoP) or to the demonstrable risk (R. 197.1 RoP in case an ex parte order is sought) of evidence being destroyed or otherwise ceasing to be available, and not with reference to the certainty of the disappearance or the unavailability of evidence.

Unlike provisional measures, for which the court must, among the required conditions, find with a sufficient degree of certainty that the patent is valid (R. 211.2 RoP), no such criterion is required within the framework of the court’s discretion to order measures to preserve evidence. When examining an application for preserving evidence and for inspection of premises, the court is not required to assess the validity of the patent at issue. This matter remains solely within the competence of the judge ruling on the merits or on provisional measures, except where the presumption of validity can clearly be called into question, for example, following a decision by an EPO opposition division or a Boa in a parallel opposition procedure, or in revocation proceedings before another court concerning the same patent.