Case Law
Article 60: Order to preserve evidence and to inspect premises
Court of First Instance - Paris (FR) Local Division, Order dated 24/03/2025, TIRU v MAGUIN SAS (Case/ Registry number: 66560/2024 and 7220/2025, ORD_9276/2025)
Example of decision on the reasonable delay for evidence-preservation (two months from discovery to filing is held acceptable): "6. The TIRU request was filed two months later, on December 17, 2024. However, a two-month period to prepare the application for preservation of evidence appears reasonable, as the applicant for seizure is required under Article 60.1 of the UPCA to present reasonably accessible evidence to support its allegations that its patent has been infringed or that infringement is imminent."
Court of First Instance - Mannheim (DE) Local Division, Order dated 03/03/2025, Applicant v. Defendant (Case/ Registry number: ACT 8272/2025, ORD_10436/2025)
Example of decision on preservation of evidence and inspection of premises who can only be granted if the applicant establishes a certain degree of plausibility of the offence or the threat of offence: "The order is to be rejected as the applicant failed to set out that there is a sufficient degree of probability that infringement of the asserted claim combination can be found. That such probability can be found, has to be established with a sufficient degree of substantiation. Art. 60 UPCA as well as Art. 7 Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (enforcement directive) are to be understood so as to have as inherent prerequisite that an order to preserve evidence and to inspect premises can only be rendered, if the applicant establishes a certain degree of plausibility of infringement or the threat thereof. In consequence, mere allegations of infringement as such are insufficient (cf. Tilmann, Art. 60 UPCA, para. 17 et seq. arguing with good reasons that omitting the word “sufficient” in Art. 7 of the enforcement directive opposed to Art. 6 is an obvious drafting error). Ordering an inspection based on mere allegations of there being infringement without examining why infringement is probable, were disproportionate and therefore counter to Art. 42 (1) UPCA and recital 3 preamble of the RoP. This means that it is insufficient just to set out why infringement cannot be excluded. Rather, facts have to be submitted which establish a certain probability to be evaluated on the instant facts that infringement can be found (cf. Local Division Paris 14.11.2023 – UPC_CFI_397/2023, GRUR-RS 2023, 40562 paras. 22 et seqq. confirmed in Local Division Paris 1.3.2024 – UPC_CFI_397/2023, GRUR_RS 2024, 7142 para 40)."
Court of First Instance - Paris (FR) Local Division, Order dated 01/03/2024, C-Kore / Novawell (Case number UPC_CFI_397/2023 App_601-2024)
Example of decision on the burden of proof by the applicant to the saisie order: “According to Art. 60.1 UPCA, the applicant must provide reasonable evidence to support the claim that the patent has been infringed or is about to be infringed, i.e. the application should not be based on simple assumptions or allegations that are not supported by sufficient evidence, the aim being to gather all the means to prove the alleged infringement.”
Court of First Instance - Milan (IT) Local Division, Order dated 25/09/2023, PROGRESS MASCHINEN & AUTOMATION AG / AWM S.R.L., SCHNELL S.P.A. (Case number UPC_CFI_286/2023, ORD_576298/2023)
Example of decision concerning the burden of proof on the claimant: “The Claimant sufficiently proved that he is entitled as proprietor of the patent EP230 (see Enclosure A). Concerning the validity of the patent at issue, it implies from the EPO Board of Appeal decision (see Enclosure B) that:
– opposition proceedings at the European Patent Office related to EP230 have been rejected;
– the Defendants were not parties of the opposition proceedings;
- the patent at issue has been maintained as granted.
Therefore, the validity of the patent at issue - at this early stage - is proved.”
Court of First Instance - Brussels (BE) Local Division, Order dated 21/09/2023, Jozef Frans Nelissen v OrthoApnea S.L. (Case number UPC_CFI_329/2023, ORD_575902/2023)