1. Key takeaways
A request for preserving evidence does not require that this measure is sought without unreasonable delay.
It is necessary to distinguish between the assessment of urgency in the context of an application for preserving evidence (R. 194.2(a) RoP) and the assessment of urgency in the context of an application for provisional measures (R. 209.2(b) RoP). In exercising its discretion to determine whether provisional measures should be ordered, the Court shall also have regard to any unreasonable delay in seeking provisional measures (R. 211.4 RoP). No such requirement is imposed either by the UPCA or by the RoP when assessing whether an application for preserving evidence should be granted.
The assessment of the risk of destruction or unavailability of evidence for an order to preserve evidence is based on probability or the demonstrable risk in case of ex parte order), certainty is not required.
The risk of the destruction or unavailability of evidence must be assessed with reference to probability (R. 194.2(c) RoP) or to the demonstrable risk (R. 197.1 RoP in case an ex parte order is sought) of evidence being destroyed or otherwise ceasing to be available, and not with reference to the certainty of the disappearance or the unavailability of evidence.
It is not required to assess the validity of the patent for an order to preserve evidence unless the presumption of validity is clearly called into question.
Unlike provisional measures, for which the court must, among the required conditions, find with a sufficient degree of certainty that the patent is valid (R. 211.2 RoP), no such criterion is required within the framework of the court's discretion to order measures to preserve evidence. When examining an application for preserving evidence and for inspection of premises, the court is not required to assess the validity of the patent at issue. This matter remains solely within the competence of the judge ruling on the merits or on provisional measures, except where the presumption of validity can clearly be called into question, for example, following a decision by an EPO opposition division or a Boa in a parallel opposition procedure, or in revocation proceedings before another court concerning the same patent.
2. Division
UPC Court of Appeal (Panel 1b)
3. UPC number
(1) UPC_CoA_327/2025; (2) UPC_CoA_002/2025
4. Type of proceedings
Review of orders to preserve evidence
5. Parties
(1) Maguin SAS (appellant; defendant at CFI) v Tiru SAS (respondent, applicant at CFI)
(2) Valinea SASU (appellant; defendant at CFI) v Tiru SAS (respondent, applicant at CFI)
6. Patent(s)
EP 3 178 578
7. Reviewed subject matter
(1) LD Paris, order of March 24, 2025, Tiru SAS v Maguin SAS, UPC_CFI_813/2024
(2) LD Paris, order of March 24, 2025, Tiru SAS v Valinea SAS, UPC_CFI_814/2024
8. Body of legislation / Rules
Art. 60 UPCA; R. 192, 194, 196, 197 RoP, Art. 7 Enforcement Directive
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
