Proceeding Decision

1. In case of European Patents, the material proprietor is deemed to be the patent proprietor for the purposes of proceedings before the UPC. However, if the patent proprietor is registered in the European Patent Register or in the national register(s), it may initially rely on a rebuttable presumption (R. 8.5 (c) RoP). This rebuttable presumption attached to the registered patent is a strong presumption which can only be rebutted in PI proceedings if the title is manifestly erroneous. 2. If the defendant claims that the applicant is not acting in good faith because the applicant has unlawfully appropriated the patent in suit to its detriment, this cannot be taken into account in favour of the defendant in the weighing of interests if the defendant has failed to bring a vindication action in due time before the national courts. 3. In answering the question of whether the patent in suit is more likely to be invalid than not, no conclusions can be drawn from the general revocation rates of patents. Only relevant is the patent in suit. 4. Whether a delay is unreasonable within the meaning of R. 211.4 RoP depends on the circumstances of the individual case. There is no fixed deadline by which the applicant must submit its application for provisional measures. The question is always whether the applicant’s conduct as a whole justifies the conclusion that the enforcement of its rights is not urgent.

urgency, rebuttable presumption, weighing of interests, Application for provisional measures, preliminary injunction, good faith, exceptional damage, entitlement