Case Law
Rule 194: Examination of the Application for preserving evidence

Court of First Instance - Paris (FR) Local Division, Order dated 14/11/2023, C-Kore Systems limited vs. Novawell (Case number UPC_CFI_397/2023, ORD_587064/2023)
Example of decision on an application for preserving evidence: “6.1. The weighting up of the interest of all parties implies granting the measure, considering the potential risk of harm for each of the parties, in the case of granting - for the Defendant - or denial of the measure - borne by the Applicant. From the information given at this stage of the proceedings, the Court notes that:
– the Applicant is a small enterprise and its most successful product is the “CABLE MONITOR” presented as the invention protected by the patent at issue acquired in 2019; - the Defendant is a former client of the Applicant, trained by the latest in the use of the CABLE MONITOR product and that expresses in his current website the intention to expand his business worldwide with his new product “SICOM ROV tool” which looks similar to the CABLE MONITOR product. Taking into consideration the principle of proportionality, the threat of definitive destruction of the evidence borne by the Applicant prevails over the Defendant’s exposure to the enforcement of the required measures.”

Court of First Instance - Milan (IT) Local Division, Order dated 25/09/2023, PROGRESS MASCHINEN & AUTOMATION AG – v. AWM S.R.L. + SCHNELL S.P.A. (Case number UPC_CFI_286/2023, ORD_576298/2023)
Example of decision concerning urgency and an ex parte order to preserve evidences: “Data capture is Claimant’s main target and it is generally accepted that digital data can be easily hidden or erased if defendants are given previous notice of this kind of application. Therefore, it is justified that evidence could be easily removed in case Defendants are informed or heard before the measure. Consequently, this order needs to be granted without the defendants having been heard since there is a demonstrable risk of evidence being destroyed or otherwise ceasing to be available (art. 60.5 UPCA).”

Court of First Instance - Milan (IT) Local Division, Order dated 13/06/2023, OERLIKON TEXTILE GMBH & CO KG v Himson Engineering Private Limited (Case number UPC_CFI_127/2023, ORD_500024/2023)
Example of decision where extreme urgency is not characterized: “The claimant argues that the order for preserving evidence is extremely urgent due to the end of the fair in Milan, which will end on the 14th of June. The application has been lodged on the 12th afternoon. At this stage, it is still possible for the presiding judge in the local division of Milan to make an urgent decision before the end of the fair. Against this background, the extreme urgency is not characterized and the application for preserving evidence can be examined by the presiding judge in accordance with Rule 194.3.”