These seven UPC decisions address two main axes: evidence preservation and access to proceedings. On preservation, a modest evidentiary threshold suffices for ex parte relief (Hybridgenerator), Nordic-Baltic practice diverges from French/Belgian/Italian seizure traditions by involving defendants pre-grant and imposing joint cost ceilings (Imbox), and Munich confirms undisputed facts bind parties even where the request itself is rejected as unnecessary (Swarco).
On access, the cases consistently distinguish “specific” from “general” interest: a parallel EPO opposition on the same patent justifies access (Phoenix Contact), while a general professional interest (Suinno) or an insufficiently substantiated interest (Oerlikon) does not. Access requests remain cost-free for applicants regardless of outcome (Edwards, Oerlikon).
Decision form
Court
Copenhagen Local Division
Core Issue
Ex parte application for preserving evidence (Rule 182 RoP) in a non-seizure country context.
Key Facts
- Danish claimant (Hebrid General) sought preservation measures against former business counterparties.
- Former employee joined a defendant; alleged use of know-how to infringe a patent.
- Court relied on a presumption of infringement supported by social media photos (Facebook/LinkedIn) and a light claim-feature table.
- Risk cited of destruction/transfer of electronic evidence outside Denmark.
Legal Framework
- Rule 182 RoP (applications for preserving evidence).
- Ex parte relief based on risk of evidence loss; security required.
Main Ruling
- Request granted in full on an ex parte basis.
- IT expert appointed to assist bailiff; report ordered.
- Security set at €7,000.
Significance
- Demonstrates a comparatively low evidentiary threshold and readiness to grant ex parte preservation in Denmark, akin to practices seen in France/Italy/Belgium.
Court
Nordic-Baltic Regional Division
Core Issue
Whether to notify defendants and proceed inter partes before granting preservation measures; handling of confidentiality and costs after withdrawal.
Key Facts
- Court indicated intent to inform defendants; applicant maintained the request.
- Defendants objected with detailed technical non-infringement evidence.
- Applicant withdrew the application after reviewing the evidence.
- Defendants sought confidentiality measures and costs.
Legal Framework
- RoP provisions permitting pre-grant involvement of defendants in preservation requests.
- Recoverable cost ceilings tied to case value; distinction between attorney fees and other costs.
Main Ruling
- Confidentiality ordered over defendants’ technical submissions; non-disclosure obligation imposed on applicant.
- Attorney-fee ceiling held to be joint (approx. €40,000)
Significiance
- Demonstrates UPC’s procedural difference from traditional seizure jurisdictions (France/Belgium) where defendants are never informed at preliminary stage
- Establishes that cost ceilings are joint, not per-party
- Shows high cost risk (€40,000) for unsuccessful seizure applications compared to traditional seizure countries
Core Issue
- Application for preserving evidence
- Effect of undisputed facts
- Obligation to commence main proceedings
Key Facts
- Swarko owned patent for optics in city traffic signs; alleged UNEX infringed by installing Chinese products in city
- Swarko already possessed sample and expert opinion confirming infringement
- Sought seizure only to prove installed products were identical to sample
- UNEX stated it had “no reason to doubt” identity claim but argued no infringement
Legal Framework
- Rule 171 ROP (undisputed facts)
- Rule 284 ROP (prohibition on misrepresenting facts)
- Rule 198 ROP (obligation to commence main proceedings)
Main Ruling
- Court deemed product identity an undisputed fact despite lack of express admission
- UNEX precluded from later denying identity or producing counter-evidence (abuse of rights)
- request rejected as dispensable/non-necessary; applicant still required to commence main proceedings within 31 days under Rule 198 despite rejection
Significance
- Establishes that facts not specifically disputed are deemed undisputed (Rule 171)
- Parties cannot simply deny their own actions without substantiation; creates binding effect of “undisputed facts” in subsequent main proceedings
- Resolves procedural conundrum by requiring main proceedings even when seizure request rejected but applicant achieved desired outcome
Core Issue
Request for access to ongoing proceedings by third-party competitor
Key Facts
- Main case between Phoenix Contact and Industria Lombarda
- Harting (competitor) was being sued by Phoenix in Germany on related utility models (not same patent)
- Harting filed EPO opposition against patent, joined by Industria Lombarda
- Harting requested access to UPC pleadings and evidence
Legal Framework
- Distinction between access to concluded vs. ongoing cases
- Requirement of specific interest outweighing parties’ interests for ongoing cases
Main Ruling
- Access denied based on German utility model proceedings (different rights, different products)
- Access granted based on EPO opposition proceedings (same patent)
- Arguments on patent interpretation and prior art documents relevant to EPO opposition
- Rejected claimant’s argument that defendant’s participation in opposition made Harting’s access unnecessary
Significance
- Clarifies that parallel EPO opposition proceedings provide sufficient specific interest for access to ongoing UPC proceedings; national proceedings on different rights (utility models vs. patent) insufficient
- Third party’s lack of control over another party’s use of UPC documents supports access
- Demonstrates lenient approach to access when EPO opposition pending
Court
Nordic Baltic Regional Division
Core Issue
- Request for access by individual/company
- Allocation of costs for access requests
Key Facts
- Pharmaceutical case between Edwards and Merrill
- Physical person requested access to ongoing case
- Parties objected and requested costs; applicant later clarified acting for himself and SWAT Medical company
- Requested amendment of application
- Applicant withdrew application
- Merrill requested decision on costs
Legal Framework
Cost allocation rules for access requests
Main Ruling
No legal basis exists for ordering member of public who requests access to reimburse legal costs; request for access is always cost-free for applicant
Significance
- Establishes important principle that access requests carry no cost risk for applicants, even if unsuccessful or withdrawn
- Contrasts with general litigation cost rules
- Encourages transparency by eliminating financial barrier to access requests
Core Issue
Request for access based on professional/general legal interest
Key Facts
- Case between Swino and Microsoft involved orders addressing in-house EPA (European Patent Attorney) issues
- Institute of Professional Representatives before EPO requested access to ongoing case
- Argued interest in defending in-house EPA interests
- Parties did not oppose but left to court’s discretion
Legal Framework
- Requirement of specific (not general) interest for access to ongoing proceedings
- Integrity of proceedings standard
Main Ruling
- Access denied
- Applicant’s interest purely legal and of general nature
- Knowledge of specific case facts deemed irrelevant to general legal interest
- Professional interest insufficient for access to ongoing case
Significance
- Establishes that purely legal or professional interests of general nature do not constitute sufficient specific interest for accessing ongoing proceedings
- Distinguishes between general policy interests and case-specific interests required for access
Core Issue
- Request for access to support stay of proceedings in parallel case
- Distinction between general and specific interest
Key Facts
- Oerlikon sued Bagat (Indian company) for infringement
- Bagat did not defend, was condemned, ordered to pay 80% costs
- Bagat appealed and requested suspensive effect (denied for lack of substantiation)
- Oerlikon separately sued Himson Engineering (another Indian company) on same patent
- Himson defended itself
- Bagat requested access to Himson case to support stay request in its own appeal
- Settlement negotiations ongoing between Oerlikon and Himson
Legal Framework
- Specific interest requirement for access to ongoing proceedings
- Integrity of proceedings standard; publicly available information doctrine
Main Ruling
- Access denied; Bagat’s stated specific interest was only parallel stay request
- Bagat failed to use publicly available information (CMS showed auxiliary requests, prior art cited in orders)
- Potential interference with settlement negotiations between Oerlikon and Himson
- Bagat had not challenged validity or infringement in its own case, limiting specific interest
- Costs cannot be imposed on access applicants
Significance
- Reinforces distinction between general and specific interest established in prior Court of Appeal decisions
- Access applicant must utilize publicly available information before requesting full access
- Court considers potential interference with settlement negotiations as integrity concern
- Confirms cost-free nature of access requests
- Demonstrates limits of “specific interest” when applicant failed to defend in own case
