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UPC: Provisional injunctions – Presumption in favour of validity


The UPC local division in Munich had the honour of the first oral hearing for a UPC preliminary injunction, but Düsseldorf had – largely unnoticed – issued the first UPC preliminary injunction ex parte without an opportunity for the defendant to be heard, based on EP2546134B1, and a request filed on 22nd of June 2023.

The UPC local division in Düsseldorf carefully weighed the circumstances and held that sufficient grounds to grant a preliminary injunction ex parte were present since urgency was given and no new relevant prior art has been discussed in the protective letter. The UPC ruling is in line with last year’s findings of the European Court of Justice (C-44/21 – Phoenix Contact). The ECJ has therein ruled that Article 9(1) of Directive 2004/48 must be interpreted as that any requirement for a preliminary injunction defining that a patent needs to have survived at least first instance opposition or revocation proceedings in order to serve as a basis for a preliminary injunction is not justified. 

For provisional injunctions in the UPC, the sufficient degree of certainty regarding validity is a currently highly discussed requirement for granting a preliminary injunction. The very first decision of the UPC local division in Düsseldorf indicates that, also in the UPC system, patents have in principle a presumption of validity. 

The case shows that even without a prior confirmation of the patentability of the patent-in-suit in any kind of validity proceedings, a granted patent is a strong thread and an alleged infringer should discuss new relevant prior art documents or at least reasons for non-validity of the patent in case the defendant wants to defend himself through an oral hearing. 

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.

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