The Unified Patent Court (UPC) has begun to shape a coherent jurisprudence around Art. 60 UPCA supplement by Rules 192-196 Rules of Procedure (RoP), which governs orders to preserve evidence and inspection measures. This procedural instrument which can be described as the European counterpart comparable to the French saisie-contrefaçon, plays a critical role in ensuring that vital evidence is secured before it can be lost or altered. Recent decisions across several local divisions demonstrate that the Court’s approach seeks to balance procedural effectiveness with fairness and proportionality.
Autonomous Interpretation and Procedural Nature
Art 60 UPCA transposes Article 7 Enforcement Directive (2004/48/EC) into the UPC’s procedural framework. While Art. 60 UPCA draws inspiration from the French saisie-contrefaçon, these measures must be interpreted autonomously and independent of national transpositions of Art 7 Enforcement Directive (2004/48/EC) already adopted in the CMSs. This means that practitioners cannot rely on domestic precedents alone: the UPC is developing its own doctrine, rooted in principles of proportionality, necessity, and procedural fairness.
The Court’s approach emphasizes that preservation of evidence and its respective measures are strictly procedural in nature. As the Milan Local Division clarified in 3V Sigma v. AGA-ACEF (19 May 2025, UPC_CFI_342/2025), these orders merely facilitate the collection of evidence and do not affect the substantive rights or commercial activity of the defendant.
Ex Parte Proceedings and the Balance of Interests
Most orders to preserve evidence are granted ex parte, but this is far from automatic. Under Rule 194 RoP, the Court has discretion to inform the defendant about the application, and it must justify any decision to proceed without hearing the other side. The key factors are urgency, risk of destruction of evidence, and balance of interests.
The Court of Appeal’s decision in Valinea v. Tiru (15 July 2025, UPC_CoA_327/2025) reminds us that ex parte relief is justified only where the applicant’s interest in preventing the disappearance of crucial evidence clearly outweighs the defendant’s right to be heard. The Milan Local Division adopted a similar view in PMA v. AWM (25 September 2023, UPC_CFI_286/2023), holding that the risk of irreversible destruction of evidence prevailed over the inconvenience caused to the defendant. These cases confirm that the Court must engage in a genuine balancing exercise rather than treating ex parte measures as the default. Additionally, it is the applicant’s duty to disclose any material facts (but not necessarily prior art) which might influence the court in its decision to grant an order ex parte (Rule 192.3 RoP).
Urgency and Risk of Evidence Destruction
The urgency requirement under Article 60 UPCA and Rule 192 RoP is assessed pragmatically. The Court looks at whether a delay would cause irreparable harm to the patentee’s ability to prove its case or preserve key information. In 3V Sigma v. AGA-ACEF (LD Milan, cited above) and Genentech v. Organon (LD Brussels, 30 May 2025, UPC_CFI_407/2025 and UPC_CFI_408/2025), urgency was recognized where delay would undermine the applicant’s market position, for example, where a biosimilar’s entry threatened the exclusivity of a reference medicine. Similarly, when products were displayed at trade fairs or about to be presented to an international audience (LD The Hague, 25 September 2024, DDT v. Doytec automation, UPC_CFI_554/2024; LD Milan, 18 March 2025, Prinoth v. Xelom, UPC_CFI_127/2023), the Court accepted that inspection needed to occur immediately to prevent evidentiary loss.
The risk of destruction need not be certain; a reasonable probability suffices. As the Court of Appeal explained in Valinea v. Tiru, the applicant must demonstrate a tangible likelihood that evidence could be altered, hidden, or rendered inaccessible; such standard is readily met in cases involving digital data, as the local divisions have repeatedly found that digital data can easily be deleted or modified once defendants are alerted (LD Milan, , cited above ; LD Düsseldorf, 26 March 2025 , UPC_CFI_260/2025).
Necessity, Validity and the Substantiation of Infringement
The applicant must establish that the measure is necessary to preserve relevant evidence, especially when the applicant might have been at risk of revealing its strategy through suspicious test purchases (LD Düsseldorf, 16 April 2025, Bekaert Binjiang v. Siltronic et al, UPC_CFI_539/2024 and OTEC v. STEROS, cited above).
Validity of the patent is not a condition per se. The court is generally not required to assess validity (CoA, Valinea v. Tiru, cited above), unlike in a PI case, with the exception where the presumption of validity can clearly be called into question. For instance, this may be appropriate following a decision of an Opposition Division or a Board of Appeal of the EPO in a parallel opposition proceeding or in revocation proceedings pending before another court in respect of the same patent (LD Brussels, , Genentech v. Organon, cited above).
The standard regarding proof of infringement is also intentionally lighter than the prima facie infringement threshold for provisional measures. Nevertheless, as orders such as Nanoval v. ALD (LD Munich, 28 May 2025, UPC_CFI_63/2025) and demonstrate, mere allegations are insufficient as courts are alert to ‘fishing expeditions’. The applicant must present concrete facts suggesting that the patented technology is being implemented. Where a product can achieve the same technical result in multiple ways, applicants are expected to address alternative solutions and explain why the patented one is likely being used (LD Mannheim, 3 March 2025, cited above).
Protection of Confidential Information
The protection of confidential information is integral to Article 60 UPCA. The grant of orders does not entail unconditional disclosure of the information to the applicant. Instead, the Court must ensure that any sensitive material is handled in accordance with Article 60(1) UPCA and Article 7(1) Enforcement Directive 2004/48/EC. Hence, the respective order must be subject to the production of confidential information.
In practice, this means that e.g. an expert’s inspection report is deposited with the Court registry, and the defendant has a set deadline to file a confidentiality protection request. If such a request is made, the Court will then consult the parties and issue a separate order defining who may access which parts of the evidence. This two-step process is widely adopted (LD Milan, 19 May 2025, 3V Sigma v. AGA-ACEF, UPC_CFI_342/2025; LD Milan, 18 March 2025, Prinoth v. Xelom, UPC_CFI_127/2023; LD The Hague, 22 January 2025, PTS Machinery v. Mammoet Holding, UPC_CFI_16/2025).
Security and Enforcement
Under Rule 192.6 RoP, applicants seeking ex parte orders must generally provide security to cover legal costs or potential damages suffered by the defendant, unless there are special circumstances not to do so. Security orders have ranged between EUR 15,000 and 75,000, depending on the nature and value of the evidence or product at issue. The Milan division regularly provides detailed reasoning for its calculations. In exceptional cases, such as time-sensitive inspections during trade fairs, courts may waive the requirement altogether to ensure immediate enforceability.
Execution of inspection orders is not usually required within a set deadline (except LD Brussels, 30 May 2025, Genentech v. Organon, UPC_CFI_407/2025 and UPC_CFI_408/2025, 1 month). Non-compliance can lead to daily or hourly penalties, as seen in Hybridgenerator v. HGSystem (LD Copenhagen, 3 March 2025, UPC _CFl_492/2024) and Mammoet v. PTS Machinery (LD The Hague, 22 January 2025, UPC_CFI_16/2025).
Conclusion
In the UPC’s first wave of case law under Article 60 UPCA the Court recognizes the power of evidence preservation tools but exercises them within tight procedural and proportional boundaries. Practitioners are expected to prepare applications that articulate the conditions, urgency, necessity, and balance of interests, supported by factual data. Conversely, defendants should respond proactively to assert protection of confidential information.
By Marion Soulé and Frederik Karl