In patent infringement proceedings before the Unified Patent Court (UPC) a claimant can, in particular, be awarded claims to injunction, information and damages as well as recall and destruction. However, the rules governing the UPC provide provisional measures and orders which can be applied for before or besides main infringement proceedings. “Provisional” means that decisions of the court can be obtained quicker than in main proceedings, but are only preliminary, meaning that they can be overruled in case of a differing result in the main proceedings.
Provisional measures and orders can be put in three categories:
Categories of provisional measures
1st Category – temporary order regarding main suit
The first category would be measures which preliminary and partially award claims, namely an injunction (with the respective consequences in case of a breach) and seizure of potentially infringing products.
2nd Category – order preparing main proceeding
The second category would be orders which allow a potential claimant to assess the chances of success of an infringement action, namely orders for inspection, e.g. the inspection of a potentially infringing machine together with a court-appointed expert.
3rd Category – safeguards for monetary claims
The third category would be measures with which monetary claims from an (future) infringement proceeding, in particular claims to damages and reimbursement of costs, can be secured through the seizure of assets.
Provisional measures and orders can be applied for before or besides main infringement proceedings. However, if no main action is initiated, defendant can demand that a main action is initiated or provisional decisions by the court be lifted alternatively.
Timeline of the procedure
The duration of the proceedings re provisional measures and orders can vary between hours or days and weeks or months. This primarily depends on whether the court gives the defendant the possibility to reply to an application for such measures in writing and whether an oral hearing is scheduled. This in turn is primarily dependent on the degree with which infringement and validity can be assumed and how urgent the measures are for the applicant (can he e.g. claim that without a quick decision he would incur heavy and irreparable damages?).
Potential defendants can deposit a protective letter at the court, meaning a written summary of their presumed defense. A protective letter thereby ensures that the court hears the defense and thus rejects the application (or at least gives the defendant the chance for further submissions) if a defendant assumes that such an application could be filed.