With its latest decisions, the Unified Patent Court has clarified the instruments of evidence preservation and inspection orders under Article 60 UPCA and Rules 192 et seq. RoP. It is becoming apparent that evidence preservation measures before the UPC are a strategically effective tool.

In recent months, the Unified Patent Court (UPC) has issued a series of decisions that have clarified the instruments of evidence preservation and inspection orders under Article 60 UPCA and Rules 192 et seq. RoP. The decisions from Brussels, Mannheim, and Düsseldorf show that the court grants patent holders low-threshold access to rapid and effective investigative measures, while at the same time subjecting these measures to judicial review of proportionality and confidentiality. Overall, it is becoming apparent that evidence preservation proceedings at the UPC are not just a theoretical tool but can prove to be strategically valuable in practice.

1. The legal framework – flexible powers of intervention, accompanied by control

Under Article 60 of the UPCA and Rules 196 et seq. RoP, the UPC may order comprehensive measures to preserve evidence, including inspection, documentation, opening of devices, or even seizure. Rule 197 RoP expressly allows ex parte orders if delays would jeopardize the purpose – for example, due to the threat of removal or alteration of evidence-relevant products.

The recent decision of the Brussels Local Division (Organon v. Genentech, UPC_CFI_407/2025) has specified the requirements for issuing a measure to preserve evidence under Rules 196 et seq. RoP. The Division clarified that the issuance of inspection orders without a prior hearing is subject to a two-stage review program:

First, an ex ante review is conducted to determine whether the order was justified on the basis of the facts known and reasonably recognizable to the court at the time of issuance.

In a second step, an ex-post assessment is carried out to examine whether the measure needs to be confirmed, adjusted, or revoked in light of all the information now available. In doing so, the court refers this review back to the time of the issuance of the order, which is why the results of the inspection may not be used for subsequent justification.

With regard to the requirement of “imminent infringement” as a separate threshold, the decision emphasizes that a plausible and concrete probability of infringement is sufficient.

2. The geographical and material scope of the orders

The decision of the Mannheim Local Division (Centripetal v. Palo Alto, UPC_CFI_636/2025) shows how important it is to precisely formulate the geographical scope. In the facts underlying this decision, it turned out that the premises named did not contain the relevant systems or data. The patent owner then demanded sanctions for lack of cooperation.

However, the Court of Appeal clarified that an inspection order does not oblige the respondent to first bring missing items—such as machines or servers—to the premises being searched or to provide data separately. The respondent is therefore only required to actively cooperate if their actions are necessary to enable the applicant to inspect the premises and the items located there in accordance with the order; there is no further obligation on the part of the respondent to actively cooperate.

The premises to be inspected must therefore be described as precisely as possible. Only then can both the effectiveness of the measure (Art. 7 Enforcement Directive) and the fundamental rights of the respondent (Art. 7 CFREU, Art. 8 ECHR) be guaranteed. The inspection may not be extended to other locations that are not explicitly named, unless these are immediately adjacent areas that are clearly functionally related. The local limitation also defines the content and scope of the inspection: only objects, data, and systems that are actually located in the designated premises may be examined.

The decision thus emphasizes that careful application is crucial.

3. Generous granting of inspections in Düsseldorf based on the Düsseldorf procedure

In the Van Loon v. Inverquark decision (UPC_CFI_1325/2025), the court granted ex parte permission for comprehensive preservation of evidence relating to a product (“InverJet”) exhibited at a trade fair. The technical features disclosed were not sufficiently recognizable from the outside; only an inspection could provide clarity. The court saw an imminent loss of evidence due to the temporary availability at the trade fair and ordered far-reaching measures—including opening the device, taking measurements, and documenting it with images.

According to the decision, neither the mere denial of patent infringement nor general references to a doubtful validity in a protective letter previously submitted by the respondent preclude the issuance of an order to preserve evidence; rather, the decisive factor is whether there are concrete indications of a lack of validity. The court affirmed the urgency in view of the short-term availability of the product at the trade fair and the market conditions, which effectively ruled out a test purchase or a thorough investigation by the patent holder. Similarly, the risk of the exhibit being removed justified the ex parte decision, with the court clarifying that even a protective letter submitted by the respondents was not specifically directed against an inspection order and that a hearing was therefore not necessary.

In the OTEC v. Steros decision (UPC_CFI_885/2025), the court also followed the line of allowing inspections to be carried out over a wide area. The order included, among other things, the technical commissioning of a machine at an exhibition stand, measurements and, if necessary, seizure. At the same time, strict confidentiality requirements were imposed in favor of the respondent, including a staged release of the detailed description to be prepared by the expert.

The subsequent decision of November 17, 2025 (also UPC_CFI_885/2025) deals with the requirements for disclosure of the expert’s detailed description of the inspection and the handling of the respondent’s confidentiality interests. The decision confirms the two-stage examination mechanism that has now also been established at the UPC: First, extensive inspection and documentation powers are granted in the interest of effective preservation of evidence; then, a court-controlled confidentiality assessment is carried out before the findings obtained may be made available to a party.

4. Conclusion: The evidence preservation procedure before the UPC – a worthwhile instrument

The decisions presented here show that, based on its case law to date, the UPC readily grants orders for the preservation of evidence if the requirements are plausibly demonstrated. Particularly in the case of trade fair products, built-in systems, or technically complex devices, the evidence preservation procedure is often the only realistic way to prove patent infringement. At the same time, judicial review ensures the rule of law and proportionality without compromising effectiveness.

Overall, evidence preservation measures before the UPC are a strategically effective tool.