A guide to the UPC and the UP - Flipbook - Page 363
Probability that the Evidence may be Destroyed
18-38 The Court will consider the risk to the evidence and the probability that it may be destroyed
or otherwise cease to be available. The Court, in exercising its discretion, is directed to the
circumstances under which it can make an ex parte order, which requires a demonstrable risk
that the evidence will be destroyed or disappear. 56 Therefore, the higher the probability that the
evidence is at risk of being destroyed or ceasing to be available, the more likely that the Court
will order that the matter proceeds on an ex parte basis.
Other Matters
18-39 In contra-distinction to applications for provisional injunctions, there is no mention that the
Court should consider either:
– Whether the patent has been upheld in an opposition procedure before the EPO or has been
the subject of proceedings in any other court; 57 or
– Any protective letters that have been filed in relation to the patent the subject of
the application. 58
18-40 Their absence may be explained by the fact that saisies relate purely to preserving evidence
relating to infringement or imminent infringement of the patent. However, the Court’s
discretion is not fettered and if issues of validity are relevant to the application, the Court will be
able to take them into account, although possibly they might have less weight than in relation
to an application for a provisional injunction.
18-41 Chapter 16 (Provisional and Protective Measures) sets out in detail the concept and use of
protective letters, who may file them, how they are filed and what they should contain. It also
addresses how the Court will handle protective letters and considers what information will
be given to the applicant for a provisional injunction (which would also apply to an applicant
for a saisie). 59
18-42 There is also no requirement on the Court to consider how onerous the obligation may be on
the defendant to comply with the order.
Oral Hearing
18-43 Where the Court decides to summon both parties to an oral hearing, the date will be set as
soon as possible after the application is received. This slightly oddly worded provision probably
indicates that not only should the date be set as soon as possible, but that the oral hearing
should take place in the near future. 60 The procedure will follow the normal rules for oral
hearings 61 which, in particular, allow the Court to decide that the oral hearing will not be open
to the public “in the interests of one or both parties or third parties or in the general interests of
justice or public order”. 62 Therefore, where confidential information is to be discussed or
disclosed, the Court has the power to hear the application or part of the application in private.
56
57
58
59
60
61
62
r.197(1) RoP.
r.209(2)(a) RoP.
r.209(2)(d) RoP.
See chapter 16 (Provisional and Protective Measures) paragraphs 16-73 to 16-89.
r.195(1) RoP. See commentary in chapter 16 (Provisional and Protective Measures) paragraph 16-51 to 16-54 for a discussion
on how this provision should be read.
R.195(2) RoP states that rr.111 to 116 RoP apply mutatis mutandis. R.112(3)(c) provides that the oral hearing can be by
video conference if the Court considers it appropriate to do so due to exceptional circumstances or if the parties agree.
See chapter 14 (Oral Procedure) for further detail.
r.115 RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 353
