IP Quick Tip: Preliminary injunctions at the UPC

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For a deeper dive, read this article in GRUR Patent 2023, 167 (German): https://beck-online.beck.de/?vpath=bibdata%2Fzeits%2FGRURPATENT%2F2023%2Fcont%2FGRURPATENT%2e2023%2e167%2e1%2ehtm

Welcome to this IP Quick Tip on one the first decisions by the UPC, an ex parte preliminary injunction (PI) regarding speed-pedelecs.

On June 22, 2023, the Local Division of Duesseldorf granted a PI in favor of Swiss pedelec manufacturer myStromer based on patent infringement by their Swiss competitor Revolt Zycling at the “EUROBIKE” trade fair in Frankfurt. Earlier on that same day, myStromer had already sent a warning letter to Revolt Zycling and filed their application for provisional measures with the UPC.

The Court issued the PI without hearing the Defendant and even though Revolt Zycling had filed a protective letter with the UPC: According to the reasoning of the decision, the arguments in the protective letter had not convinced the Court.

Here are the three main take-aways from this decision:

First: The UPC may grant PIs very quickly, here in the course of one day, and without hearing the Defendant.

Second: Protective letters are still essential in preventing an ex parte PI – but they must be drafted carefully and comprise convincing arguments.

And third: The UPC will review validity, but a PI does not require a “battle-tested” patent – in the case at hand, it was sufficient that the patent had not been attacked since 2015 and that the Defendants had not raised any invalidity arguments.