With the Unified Patent Court now over two years in full force, the conditions for obtaining preliminary measures have become clearer. Although dependent on the circumstances of each case, some general rules could be distilled from the decisions of the Local Divisions and Court of Appeal to date. They are (non-exhaustively) discussed in brief below.
Not a gamble
The applicant should only call upon the court if they have reliable knowledge of all the facts that make the proceedings for provisional measures promising and if they can make these required facts credible (LD Düsseldorf, 9 April 2024, UPC_CFI_452/2023).
Strong presumption of entitlement on registered patentee
The first prerequisite is to have the capacity to bring an action before the UPC. A strong presumption of entitlement is attached to the registration as patent proprietor. For provisional measures, this presumption can be rebutted only if the title appears to be manifestly erroneous: filing a vindication action against the applicant years after the publication of the patent application and after the application for provisional measures, does not meet that threshold according to the LD Düsseldorf (31 Oct. 2024, UPC_CFI_368/2024).
Urgency – a stringent, yet mostly pragmatic approach
Urgency is another prerequisite, otherwise the applicant should await a decision on the merits. But a critical question in practice is how much time may pass for an application to still be considered urgent?
As soon as the patent proprietor is aware of the alleged infringement facts, they must investigate them and obtain the evidence required to support their claim. They must do so with determination. As soon as the patent proprietor has the knowledge and documents that enable a promising legal action, they must file the application for a preliminary injunction promptly (LD Munich, 21 May 2024, UPC_CFI_443/2023).
In Germany, the Local Divisions of Düsseldorf and Hamburg require such action within one month from the date of knowledge (or grant of the patent) for accepting urgency (e.g. LD Düsseldorf, 9 April 2024, UPC_CFI_452/2023; LD Hamburg, 6 June 2024, UPC_CFI_151/2024 and 16 June 2025, UPC_CFI_281/2025). The Local Division Munich grants the applicant a more generous two months (27 Aug. 2024, UPC_CFI_201/2024).
The CoA has not definitively settled this difference between divisions. It did confirm that the (unreasonable) delay, pursuant to Rule 211(4) RoP, shall be calculated from the day on which the applicant became aware, or should have become aware, of the acts that would enable them to file an application for provisional measures with a reasonable prospect of success and that it ultimately depends on the circumstances of the individual case (25 Sept. 2024, UPC_CoA_182/2024; 3 March 2025, UPC_CoA_523/2024). For the CoA, 6 weeks from that day can still meet the urgency criterion (13 August 2025, UPC_CoA_446/2025).
Based on this guidance from the CoA, the Local Division in The Hague dismissed an application for provisional measures in which the applicant waited 5 months to start PI proceedings, while the applicant could have realised the true extent of the potential infringement at a much earlier stage: that it only studied the existing facts properly much later cannot create urgency (LD The Hague, 29 Aug. 2025, UPC_CFI_374/2025).
Interestingly, the same division also ruled that the time for an out-of-court settlement attempt does not count: the applicant acted diligently by starting proceedings within 2 months from the publication of grant of the patent, not counting delay for the settlement negotiations (LD The Hague, 11 Sept. 2025, UPC_CFI_479/2025).
Likelihood of validity and infringement or imminent infringement – it’s all relative
In the first-ever fully reasoned decision in the UPC to grant a PI, the Local Division Munich interprets the third requirement of a “sufficient degree of certainty” that the applicant’s right is being infringed (Art. 62(4) UPCA). In short: it is lacking if the court considers it on the balance of probabilities to be more likely than not that the patent is not valid (CoA, 26 Feb. 2024, UPC_CoA_335/2023).
Furthermore, a sufficiently certain conviction under Rule 211.2 in conjunction with Art. 62(4) UPCA further requires that the court considers it at least predominantly probable that the patent will be infringed (CoA, 13 May 2024, UPC_CoA_1/2024; CoA, 26 Feb. 2024, UPC_CoA_335/2024).
Infringement is imminent if there are serious and tangible factual indications that the respondent will engage in unlawful conduct in the near future. The imminent infringing act must be clearly discernible (LD Munich, 19 Feb. 2025, UPC_CFI_112/2025). Or, as the CoA put it: a situation of imminent infringement is one where the infringement has not yet occurred but the potential infringer has “set the stage for it”, meaning that “the preparations for it have been fully completed” and therefore “the infringement is only a matter of starting the action”. E.g. the mere application (and grant) of a marketing authorization does not create imminent infringement in the context of marketing generics (13 Aug. 2025, UPC_CoA_446/2025).
Fast pace and consequences:
Due to the urgent nature of these proceedings, the number of invalidity arguments should be limited, and according to LD Munich (27 Aug. 2024, UPC CFI 201/2024) it is the Respondent’s responsibility to select the three best legal arguments that the court should focus on.
The average duration of proceedings for ex parte provisional measures ranges from 1 day to 2 weeks and from 3 to 4 months inter partes.
Weighing of interests – reasons for tipping in favour of applicant
The Court has discretion to weigh the interests of the parties, particularly by taking into account the potential harm for either party resulting from the granting or refusal of the injunction (Art. 62.2 UPCA and Rule 211.3).
By now, there are various cases in which the Court of Appeal gave an extensive consideration of interests involved. Some recurring factors in those cases are:
(a) whether a negative, difficult-to-reverse price spiral will occur (CoA, 14 Feb. 2025, UPC_CoA_382/2024);
(b) whether allowing competing products on the market will lead to (permanent) price erosion (CoA, 3 March 2025, UPC_CoA_523/2024);
(c) whose damages are easier to quantify (CoA, 14 Feb. 2025, UPC_CoA_382/2024);
(d) whether a decision on the merits could be awaited or not (CoA, 30 April 2025, UPC_CoA_768/2024; CoA, 25 Sept. 2024, UPC_CoA_182/2024).
Preliminary injunction (PI):
The scope of the PI covers all possible ways of infringing (incl. e.g. manufacturing) even if evidence of (likely) infringement was submitted for only one category (e.g. offering) (CoA, 14 Febr. 2025, APL_39664/2024) and can target intermediaries (Art. 62.1).
The provision of a guarantee as an exception to a PI at the request of the defendant is hardly ever granted (except e.g. in the form of a strictly-limited carveout to fulfill current delivery obligations in a specific market such as in the automotive industry supply – LD Düsseldorf, 31 Oct. 2024, UPC_CFI_368/2024), especially if the hearing on the merits is still too far ahead, ~ 1 year (CoA, 25 Sept. 2024, APL_21143/2024).
Despite its exceptional nature, applicants should be careful to oppose any request for a guarantee as an alternative to the PI: it may be granted if not countered by the applicant, as was seen with enforcement securities (see below).
Secondary measures:
Among regularly granted measures are:
(a) the seizure or delivery up of stocks,
(b) an interim award of costs, conditioned on the risk of insolvency of the defendant or a sufficiently secure legal situation, with € 11,000 taken as a minimum in lack of substantiation (i.e. amount of court fees for PI proceedings),
(c) penalty payments.
The communication of information under Art. 67 may also be ordered in proceedings for provisional measures (CoA, 14 Febr. 2025, APL_39664/2024): any information listed under Art. 67 can be requested, subject to an urgent need to get it and a justified and proportionate request, directed at e.g. names and addresses of manufacturers and distributors for taking immediate action to prevent further infringement, while prices are most likely to be considered a premature ask before a decision on the merits. It is less likely to be ordered in cases of “mere” imminent infringement though: the CoA denied it, in lack of evidence of any completed infringement, of the very existence of the requested information and of explanation as to why the information would be necessary to advance the case (CoA, 13 Aug. 2025, UPC_CoA_446/2025).
Lastly, the interim award of damages has been denied so far despite R. 211 being openly worded (LD Düsseldorf, 30 Apr. 2024, UPC_CFI_463/2023).
Enforcement security – not always automatic:
The lodging by the applicant of an enforcement security is as of right with ex parte measures (R. 211.5), save special circumstances such as:
(a) the absence or a minimal damage expected where a prior C&D undertaking has been given,
(b) a very tight timeline for enforcing the provisional measures, typically at an imminent trade fair (or immediate enforcement subject to later provision of security),
(c) sometimes coupled with a solid financial situation of the applicant.
In inter partes proceedings on the other hand, the court has discretion and will impose an enforcement security if the defendant makes it likely and sufficiently substantiates that it will be unduly burdensome (including from a financial standpoint) to enforce a damage claim based on:
(a) the economic situation of the applicant, or
(b) the enforcement law in the applicant’s home country, which should be related to actual practice of national authorities in enforcing foreign judgments (CoA, 3 March 2025, APL_51115/2024), or
(c) in lack of any objection from the applicant (LD Hague, 31 July 2024, UPC_CFI_195/2024).
An adequate security should cover the costs of enforcement of a damage claim if the order is revoked. In lack of an estimation, it will be based on the value in dispute and in practice ranges from € 200,000 to € 3 million.
Protective letters – a trade-off to be made:
The Rules only oblige the Court to summon the defendant where a relevant protective letter has been filed (Rule 209.2 (d)). If the court is unconvinced with the arguments in the protective letter, it might decline to hear the defendant.
Yet, this option should not be disregarded too quickly as not making use of it after having received a warning letter (when it provides the opportunity to substantiate one’s defense to the arguments raised in the warning letter) might be taken into account by the court to justify an ex parte ruling (LD Düsseldorf, 11 Dec. 2023, UPC CFI 452/2023).
By Laurène Borey and Inez ten Brink