A guide to the UPC and the UP - Flipbook - Page 311
Netherlands, for instance, the underlying merits are scrutinised to some degree. An applicant in
Belgium must show the patent is prima facie valid and infringed.
Form of Application and its Requirements
16-30 Rr.206(2) and (3) RoP specify that the application for provisional and precautionary measures
must include the following:
– Various details specified in r.13(1)(a) to 13(1)(i) RoP which include the names of the claimant
and defendant and their respective addresses for service, evidence that the claimant is, if not
the proprietor or sole proprietor of the patent, entitled to bring proceedings, details of the
patent, details of any prior pending proceedings and reasons why the division has
competence; 24
– The type of provisional measure sought; 25
– The reasons why the provisional measures are necessary to: 26
– prevent a threatened infringement;
– forbid continuation of infringement already begun; or
– make such continuation subject to the lodging of guarantees;
– The facts and evidence in support of the application including its necessity; 27
– A concise description of the main action that will be started; 28
– Any request that provisional measures be ordered without hearing the
defendant including: 29
– The reasons why the defendant should not be heard; and
– Details of any prior correspondence between the parties concerning the infringement.
16-31 The first two of these requirements are formal and relatively straightforward. In respect of
the requirement to indicate the provisional measures being requested, 30 at its lowest level,
this must require the applicant to specify which of the available provisional measures in r.211(1)
RoP the application relates to i.e. provisional injunction, seizure of goods or seizure of assets,
and whether an interim order for costs is sought. It is also suggestive of the need to specify
further details such as the precise form of provisional measure that the Court is requested to
make, for example, where goods are to be seized.
16-32 The requirements for the application to contain reasons why the measures are necessary
and evidence to support the necessity of the application come from r.206(2)(c) and (d) RoP.
The former appears to contain a substantive requirement which the Court must consider:
the necessity of granting the injunction in order to achieve one of the three recognised
objectives in art.62(1) UPCA, that is, prevention or cessation of infringement or obtaining
guarantees. On first examination, the requirement to show that the provisional injunction is
necessary suggests that an applicant will face a significant hurdle in obtaining a provisional
injunction. However, taken together with the three specified objectives, the hurdle may be
24
25
26
27
28
29
30
r.206(2)(a) RoP. See chapter 12 (Written Procedure) paragraphs 12-34 for details of these requirements as they pertain to
the SoC.
r.206(2)(b) RoP.
r.206(2)(c) RoP.
r.206(2)(d) RoP.
r.206(2)(e) RoP.
r.206(3) RoP.
r.206(2)(b) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 301
