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A supranational patent injunction on the fast track in Europe?
Before the Unified Patent Court, a patent that is probably legally valid can be sufficient!
No need to demonstrate validity “up to the hilt”!
(Article by Dr. Thomas Rössler, LL.M.)
An overwhelming probability of the validity of the patent in suit is sufficient for the Unified Patent Court to order an interim injunction. This already creates a sufficient degree of certainty (cf. Rule 211.2 RoP). This was recently decided by the Munich Local Chamber (UPC_CFI_2/2023, 19.09.2023) in a dispute between two biotechnology giants (10x Genomics ./. Nanostring).
Thus, the legal status does not have to be already secured “beyond reasonable doubt” or “up to the hilt” or according to a similarly high, comparable standard. In the case at hand, the court considered the validity of the patent in suit to be established by a preponderance of the evidence.
Furthermore, the initial burden of proof for a lack of validity in infringement proceedings was generally on the defendant or respondent. However, it should be noted for the preliminary proceedings that – in contrast to the main proceedings – the applicants are obliged to submit information on the (positive) validity of the disputed patent right already in the application for the provisional measure (Rule 206.2(d) RoP). This already follows from the fact that the order can, in principle, also be issued ex parte – i.e. without hearing the defendant.
Preliminary injunctions based on European patents at the Unified Patent Court in Europe
The Unified Patent Court is a newly created supranational court for patent disputes in Europe, which started its activities on 1 June 2023. Since then, the first cases have been processed.
The considerations of the Munich Local Chamber regarding the hurdle to be applied with regard to validity, which are reproduced here, are good news for patent proprietors who want to enforce their rights before the Unified Patent Court: The court only has to be convinced of the likelihood of validity by the party filing the application in order to issue an interlocutory injunction as a provisional measure.
More details will probably be revealed in the appeal proceedings already officially announced by the defendant, which will then have to be decided in Luxemburg.
Incidentally, this case concerns the first court-approved provisional measure from a “genuine” European patent with unitary effect (EPUE) – a true single IP right valid in multiple European countries at once. This is clearly a historical moment – congratulations!
European Patent Attorney
European Patent Litigator (Representative before the UPC)
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