Order

1. 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 . 2. If a certain technical result can be achieved in multiple ways, the applicant will have to submit facts supporting that the technical result is achieved by applying the technical solution as enshrined in the features of the patent claim. At least, the Applicant will have to set out that there are factual circumstances, which point into the direction of the patented solution being implemented. This requires, if multiple ways are equally open to achieve the technical result, that facts are submitted which suggest that the result is being achieved by using the solution as patented and/or elaborating on alternative solutions and explain why it is rather to be excluded that these solutions are being implemented. 3. Art 60 UPCA, R. 192 RoP point into the direction of the defendant only having to tolerate that inspection is being done without demanding any essential active participation and/or preparation on his part so as to examine whether there is infringement or not. If such active role – which goes beyond granting access to the premises, switching on electricity, supplying necessary consumables or entering passwords so as to start a machine or process, R. 196.1 (d) RoP – were to be accepted at all, the likelihood of infringement at least had to be even higher.