IP Quick Tip: Preliminary injunctions before the UPC

Show notes

To register for our newsletter, please visit: https://www.bardehle.com/en/newsletter-subscription?email=

IP QuickTip Bösing: “Preliminary injunctions before the Unified Patent Court”

Welcome to this IP Quick Tip on preliminary injunctions before the UPC.

Just like in the German patent system, the UPC will provide preliminary injunctions against patent infringement. To obtain a preliminary injunction, the patentee must demonstrate that they are entitled to initiate the proceedings, that the patent in question is valid and infringed, or that such infringement is imminent.

The court then has the discretion to either – upon request by the applicant – order provisional measures without hearing the defendant, or invite the defendant to file an objection, or schedule an oral hearing.

It will be very interesting to see to what extent the UPC will consider the validity of the asserted patent. According to the draft UPC Rules of Procedure, when exercising its discretion, the court shall take into account – among other things – whether the patent has been upheld in proceedings at the EPO or another court. It remains to be seen whether this will become a mandatory requirement before the UPC similar to the current main case law in Germany.

However, this question may already be answered before the start of the UPC, as there is a referral by the Munich District Court I pending with the CJEU regarding the question whether a patent must have survived contradictory proceedings to justify a preliminary injunction. A decision by the CJEU is expected within the next few months.