Proceedings for provisional measures at the Court of Appeal of the Unified Patent Court have recently come to a conclusion in the case of Biolitec Holding GmbH & Co. KG (the appellant) and Light Guide Optics Germany GmbH & S.I.A. LIGHTGUIDE International, (the defendants).
Biolitec Holding GmbH's request for an interim injunction against Light Guide Optics Germany GmbH & S.I.A. LIGHTGUIDE International was denied by Düsseldorf Local Division of the UPC for lack of demonstration by Biolitc of the necessity for a provisional injunction, and of potential harm resulting from a denial of the injunction.
On appeal Biolitec argued that the Düsseldorf Local Division erroneously relied on a necessity test (“sachliche Notwendigkeit”), and were incorrect to consider that a provisional injunction is necessary only in special circumstances wherein the harm could not be economically compensated in the main proceedings. Biolitec suggested the criterion of necessity referenced in R. 206.2 (c) RoP is merely a formal requirement of the application, and that an isolated necessity test is beyond the sufficient degree of certainty that the applicant is required to provide as per R. 211.2 RoP.
The Court of Appeal disagreed, clarifying that the necessity requirement set out in R.206.2(c) is not merely a formal requirement of the application, but rather must be considered by the judge when issuing an order under R. 211 RoP. Furthermore the Court of Appeal explained that provisional measures are necessary for instance, where any delay would cause irreparable harm to the patent proprietor. In contrast, irreparable harm is not a necessary condition for ordering of provisional measures. Reference was made to Phoenix Contact v. Harting (2022) in which the Court of Justice of the European Union related that the time factor is of particular significance in assessing whether provisional measures are necessary.
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