- with readers working within the Metals & Mining and Telecomms industries
In two recent decisions on interim measures, in disputes between Occlutech and Lepu before the Dusseldorf and Hamburg local divisions, defendants Lepu challenged the urgency with which Occlutech had brought their actions for interim measures, suggesting that Occlutech's possession since 2023 of a product catalogue containing the contested embodiments rendered actions filed in 2025 too late to meet the urgency standards required.
Neither the Dusseldorf nor the Hamburg Local Divisions concurred with the defendant's line of argument. It was noted that, since a CE marking is required for placing a medical device on the market in any EU member state, the timer for urgency could not be considered to have begun until the defendant's obtained the CE mark for the contested products, with any knowledge of the products before this date considered irrelevant.
Notably, however, Occlutech had brought their action against Lepu before the Hamburg division several months after Lepu first publicised their acquisition of the required CE markings, with the action before the Dusseldorf division following two weeks later. However, the Court noted that there was no specific requirement for Occlutech to request interim measurements immediately upon learning of the alleged infringements, with it being well within the applicant's rights to conduct an infringement analysis and consider the results thereof. Further, a two-week delay between actions was considered a reasonable amount of time for the applicant to take to prepare the submissions for the second proceedings.
In their assessment, both divisions cited previous decisions in disputes between Ballinno and UEFA, 10x Genomics and Nanostring, and Ortovox and Mammut, reaffirming that the urgency required for the order of provisional measures is only lacking "if the injured party has pursued their claims so negligently and hesitantly that it can be objectively assumed that they have no interest in the rapid enforcement of their rights and it therefore does not appear appropriate to order provisional measures". Applicants will be no doubt relieved to see the UPC confirm that their access to justice will not be unduly limited as a result of the pre-filing actions required for the Applicant to ensure diligence.
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