Court of Appeal, March 3, 2025, Order, UPC_CoA_523/2024

A move from a market situation where only one product is available, to one where there are two competing products, can be expected to lead not just to price pressure but to a permanent price erosion. This risk is an important factor when considering whether a provisional injunction is necessary.

There are no transitional rules connected to Art. 34 UPCA. When a UPC Signatory State ratifies and accedes, the application of Art. 34 UPCA should be automatic and not subject to limitations, from the day of accession.

If the Court does not see reasons to order, of its own motion, the rendering of security for enforcement of provisional measures, a defendant can still bring forward arguments and facts to support that the outcome may be different once the action on the merits is tried, and/or that there will be an undue burden in enforcing an order for compensation of damages caused by the provisional measures if these measures are revoked. The burden of proof is then generally on the defendant. The undue burden can for example be related to the financial position of the applicant, or to the foreign law and its application in the territory where the order for compensation shall be enforced.

A cost decision should be issued with the final order in inter partes proceedings for provisional measures, since it concludes the action.