LD Düsseldorf, May 6, 2026, Order, UPC_CFI_1536/2026

Ex parte inspection at trade fairs justified where concrete risk of evidence destruction exists (Art. 60 UPCA, R. 192, 197 RoP)

The Court ordered ex parte inspection of a machine exhibited at a trade fair. The Applicant credibly demonstrated that the Defendant could remove the machine or deactivate pre-programmed processes via software update, rendering evidence of infringement irretrievably lost (R. 197.1 RoP).

The Applicant showed it had no alternative access to the machine due to its high price (up to EUR 300,000), personalized sales channels, and the absence of known mutual customers. The trade fair presented the only realistic opportunity for evidence gathering.

Plausibility of infringement suffices; patent validity need not be examined absent clear negative indications (Art. 60(1) UPCA)

The threshold for demonstrating infringement in evidence preservation proceedings is low: the applicant need only plausibly show that infringement is possible. Full substantiation is not required and may indeed be the very purpose of the inspection.

The Court confirmed that an applicant is not required to address patent validity when seeking an inspection order, even if a counterclaim for revocation is pending in separate proceedings, unless a clear indication — such as a negative validity decision — casts doubt on the patent’s legal validity.

Urgency for evidence preservation assessed differently from urgency for provisional measures; delay does not automatically defeat the application (R. 194.2(a), R. 211.4 RoP)

Citing the Court of Appeal in Valinea v. Tiru (UPC_CoA_2/2025), the Court confirmed that R. 211.4 RoP — requiring consideration of undue delay — applies only to provisional measures, not to evidence preservation. The Applicant’s awareness of potential infringement since September 2025 did not bar the application filed in May 2026.

The absence of temporal urgency is only problematic if it leads to the disappearance of the interest in evidence preservation itself, for which there was no indication in this case.

Security deposit may be waived where inspection causes minimal harm and requiring it would unreasonably delay evidence preservation (R. 196.6 RoP)

Unlike injunctions, inspection and evidence preservation orders cause at most minimal harm to the Defendant, who remains free to offer and sell the inspected products. Given the short duration of the trade fair, requiring a security deposit would have unreasonably delayed the measures, justifying a waiver under R. 196.6 RoP.

Robust confidentiality regime with staged disclosure protects defendants’ business secrets during and after inspection (R. 196.2, 196.5 RoP)

All persons involved — expert, bailiff, and the applicant’s attorneys — are bound by strict confidentiality obligations. Members or employees of the Applicant are excluded from attending. Results may only be used in main proceedings against the Defendant.

The Court established a staged disclosure procedure: the Defendant may first identify its confidentiality interests after the expert’s description is submitted. Only then does the Court decide whether and to what extent the description is disclosed to the Applicant personally.

Seizure orders must meet specificity and proportionality requirements; blanket requests at unspecified locations are rejected

The Applicant’s subsidiary request for seizure of the machine “at any other location in Germany” was rejected for lack of specificity (Bestimmtheitsgebot) and disproportionality. The permissible measures in an inspection order must be described with sufficient precision.