Key takeaways
Urgency for provisional measures is assessed per patent: delaying filing to consolidate all patents into one application can constitute unreasonable delay under R. 211.4 RoP.
A patent holder need not assert all patents in a single application for provisional measures. If sufficient information exists to file regarding some patents, waiting to consolidate all patents into one application may be regarded as unreasonable delay under R. 211.4 RoP.
If a patent holder analyzes a document revealing infringement of one patent, it cannot ignore that the same document may reveal infringement of its other patents (blind eye doctrine).
No general obligation to monitor the market, but once specific circumstances suggest infringement, due diligence is required; long-standing infringement may indicate the patent holder turned a blind eye.
The applicant bears the burden of demonstrating it acted without unreasonable delay under R. 211.4 RoP. General market availability of a product is insufficient to establish constructive knowledge; specific circumstances triggering a duty to investigate must be shown. Once triggered, the patent holder must investigate with due diligence to identify all infringers quickly.
For legal entities, urgency under R. 211.4 RoP is assessed by reference to when the relevant internal decision-maker became aware of the infringement, not just any employee.
The decisive person is someone capable of pursuing or reporting infringement — e.g., a legal department employee, senior sales staff, or a specially engaged mystery shopper. Attendance of non-IP staff at industry events is insufficient to establish relevant knowledge. Adverse inferences may be drawn where witness statements are imprecise about the date of awareness.
A patent holder may await a response to a warning letter before filing for provisional measures, but only for patents actually referenced in that letter (R. 211.4 RoP).
Where a warning letter does not reference a specific patent, the patent holder cannot rely on waiting for a response to that letter as justification for delay in filing provisional measures with respect to that patent.
Cross-appeals aimed solely at changing the reasoning of a decision that is favorable in its result to the cross-appellant are inadmissible under R. 220.1 and R. 237 RoP.
Only a party adversely affected by a decision may lodge a cross-appeal under R. 220.1 RoP. Submissions from an inadmissible cross-appeal may be treated as part of the statement of response. Under R. 242.1 RoP, the Court of Appeal decides costs on its own motion, even where no formal cost order was issued at first instance.
Interim costs awards are generally set at 50% of the applicable ceiling; the unsuccessful party bears reasonable costs under Art. 69(1) UPCA, subject to equity-based exceptions under Art. 69(2) UPCA.
An interim cost award reflects 50% of the applicable ceiling, absent clear indications of lower actual costs or party agreement. Where equity requires a different result — e.g., regarding court fees for an inadmissible cross-appeal — Art. 69(2) UPCA allows deviation. Final cost allocation is determined under Chapter 5 of Part 1 RoP.
Division
Court of Appeal (impugned order: Local Division Paris)
UPC number
UPC-CoA-19/2026 (first instance: UPC_CFI_808/2025)
Type of proceedings
Appeal proceedings against an order on provisional measures
Parties
Appellant / Applicant before the Court of First Instance: Guardant Health, Inc., Palo Alto, California, USA
vs.
Respondents / Defendants before the Court of First Instance:
Sophia Genetics SA, Rolle, Switzerland (also Cross-Appellant)
Sophia Genetics SAS, Bidart, France
Sophia Genetics SRL, Milan, Italy
Sophia Genetics GmbH, Freiburg, Germany
Patent(s)
EP 3 443 066 (Unitary Effect)
Jurisdictions
UPC, Spain, Switzerland
Body of legislation / Rules
R. 206.2 RoP
R. 211.4 RoP
R. 220.1 RoP
R. 222.2 RoP
R. 237 RoP
R. 242.1 RoP
R. 371.4 RoP
Art. 69(1), (2), (3) UPCA
Art. 138(1)(c) EPC
Art. 123(2) EPC
Art. 4 in conjunction with Art. 71b(1) Regulation (EU) 1215/2012
Art. 8(1) Regulation (EU) 1215/2012
