In the recent decision of the Brussels Local Division of the UPC (UPC_CFI_582/2024), the Court emphasized that if an applicant delays requesting provisional measures after obtaining all necessary information, this may indicate a lack of genuine interest in promptly enforcing rights. Such delays could render the request for provisional protection inappropriate.
The ruling stresses the need for patent holders to act quickly and provide adequate evidence to support their claims. The evidence gathering should start as soon as the patent holder becomes aware of the infringing act.
The decision also clarifies that:
- the date of the European patent's grant is considered the critical date for filing an action with the UPC or an action for provisional measures (such as a preliminary injunction), not the date when the patent acquires unitary effect.
- Rule 19.1(b) of the Rules of Procedure (RoP) regarding preliminary objections (related to the proceedings on the merits) is not applicable to objections concerning provisional measures, since these are addressed in a different procedural context. Provisional measures are typically granted with expedited proceedings to avoid the loss of rights or irreparable harm to the applicant.
- if a party wishes to challenge the validity of the patent or jurisdiction, this will not automatically delay proceedings on the provisional measures.
- cumulative conditions apply for granting provisional measures. That is, if one condition is not met, then this implies that the claim for provisional measures is unfounded without the need for the Court to assess any other condition. These conditions include, inter alia, demonstrating a prima facie case for validity and infringement, and that the balance of interests weighs in the applicant's favour.
The decision is a strong message from the UPC that provisional measures are designed to be a fast-track procedure, distinct from the full merits of the case.
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