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Preliminary injunctions (PIs) under the UPC's framework are an exceptional remedy. While Art. 62(2) of the UPC Agreement (UPCA) and Rule 211.3 of the Rules of Procedure (RoP) do not contain an explicit "urgency" requirement, Rule 209.2(b) RoP instructs the Court to "take into account [...] the urgency of the action" and Rule 211.4 RoP requires to Court to consider "any unreasonable delay in seeking provisional measures".
UPC case law has now firmly established that undue delay can be fatal to a PI application, although, so far, the UPC has rejected rigid deadlines. The UPC Court of Appeal (CoA) has repeatedly emphasised that delay must be assessed on a case-by-case basis, considering all circumstances.
This represents a shift away from divergent national approaches seen before the launch of the UPC: whereas German courts traditionally apply a strict one-month deadline, jurisdictions like Italy or Finland do not assess delay as a standalone requirement but in the context of overall balancing of interest, often times allowing timeframes of several months before refusing PI applications due to delay. Other jurisdictions, like France do not take into account any delay in the context of PI applications. In contrast, UK courts treat delay as one discretionary factor among many.
The UPC sits somewhere in between. There is no fixed cut-off, but a clear expectation that patentees act without delay once they have gathered all the information they need to make an application (and have done that gathering and investigating without unreasonable delay). Interim relief is only intended for urgent cases, not as a shortcut for cases where the patentee itself has contributed to delay.
Here we review the UPC Local Division (LD) and CoA decisions in this area over the last six months, and consider the "delay" which has been found reasonable or unreasonable. We note in particular the most recent PI decisions of The Hague LD in Abbott v MicroTech (6 February 2026), where the LD interpreted the CoA's decision in another Abbott case (Abbott v Sibio) as being more generous that some may previously have thought, settling on two and half months in one case and just over three months in another, as being a reasonable delay from the point at which an allegedly infringing item was acquired for testing to the date of filing of the claim. Earlier in the year, in January, the Paris CD also approved a three month "delay" as not being unreasonable in Guardant Health v Sophia Genetics.
Background
The decision of The Hague LD in Cilag v RiVolution (UPC_CFI_374/2025, 29 August 2025) reviewed the CoA decisions in Nanostring v 10x Genomics (UPC_COA_335/2023, 26 February 2024); Mammut vs Ortovox (UPC_COA_182/2024, 25 September 2024); and Boehringer Ingelheim vs Zentiva (UPC_COA_446 and _520/2025, 13 August 2025) setting out the criteria for unreasonable delay.
In Cilag, The Hague LD held that it followed from these decisions that
"an applicant does not need to apply to the Court until it has – or should have had – reliable knowledge of all the facts which make an action for interim measures likely to succeed including evidence to credibly substantiate those facts. The applicant may prepare for any possible procedural situation that may arise in the circumstances in such a way as to be able to submit the requested information and documents to the court upon an appropriate order and to successfully respond to the opposing party's submissions. On the other hand, the applicant must not delay unnecessarily. As soon as it becomes aware of the alleged infringement, it must investigate it, take the necessary steps to clarify the matter and obtain the necessary documents to support its submission. In doing so, the applicant must pursue the necessary steps with determination and bring them to a conclusion".
Once the applicant is in possession of all the knowledge and documents that are reasonably likely to lead to a successful prosecution of the case, it must normally file an application for provisional measures without delay (Dyson Technology Limited v SharkNinja Europe Limited (UPC_CFI_443/2023, 21 May 2024) and Syngenta Limited v. Sumi Agro Limited (UPC_CFI_201/2024, 27 August 2024)).
"R. 211.4 RoP thus ensures that an applicant whose conduct already indicates that it is not in a hurry, cannot expect assistance in the form of an order for provisional measures. In other words, given that the main proceedings at the UPC are (to be) concluded within a (little over a) year, a patent holder who acts with unreasonable delay, shall not be allowed to jump the queue".
However, the reverse conclusion that provisional measures must be ordered because the applicant has acted quickly does not apply. Rather, the order for provisional measures must also be objectively urgent/necessary.
The CoA in Barco v Yealink (UPC_CoA_317/2025 & UPC_CoA_376/2025, 28 November 2025) confirmed this, holding:
"Delay within the meaning of R. 211.4 RoP shall be calculated from the day on which the applicant became aware, or should have become aware, of the infringement that would enable him, in accordance with R. 206.2 RoP, to file an application for provisional measures with a reasonable prospect of success. Thus, the decisive point in time is when the applicant has, or should have had, after exercising due diligence, the necessary facts and evidence within the meaning of R. 206.2(d) RoP. Whether there has been an unreasonable delay within the meaning of R. 211.4 RoP depends on the circumstances of the individual case (order of 25 September 2024, UPC_CoA_182/2024, Mammut vs Ortovox)".
Examples of cases where there was held to have been no delay
Several local divisions (LDs) of the UPC have accepted filing delays in application for a PI of one to two months without requiring detailed justification from the applicant – especially where time was needed to investigate the infringement or prepare a technically complex case.
In Dyson v SharkNinja (CFI_443/2023, 3 September 2025) and Hand Held Products v Scandit (UPC_CFI_74/2024, 21 May 2024), the Munich LD held that a preparatory period of up to two months was compatible with the urgency requirement, particularly in light of the UPC's front-loaded procedures. In Scandit, the Munich LD even explicitly rejected the one-month deadline applied earlier by the Düsseldorf LD in Ortovox v Mammut (UPC_CFI_452/2023, 11 December 2023); 10x Genomics v Curio (UPC_CFI_463/2023, 30 April 2023).
These decisions contributed to the initial impression of inconsistent standards across LDs and may partly explain why Munich LD became a preferred venue for many patentees. That perception has since been tempered by clearer guidance from the CoA. In Mammut v Ortovox(UPC_COA_182/2024, 25 September 2024), the CoA confirmed that there is no fixed urgency deadline. It stressed that urgency depends on whether, in light of all circumstances, the applicant acted without undue delay. Following this guidance, even divisions that had previously referenced a one-month benchmark have clarified that such timeframes are merely indicative, not absolute (see for example the Düsseldorf LD in Valeo v Magna (UPC_CFI_347/2024, 21 October 2024)). Ortovox first became aware of an imminent file the application of 1 December 2023. The approximately three weeks to then file the orders on 21 and 22 December 2023 was not found to a circumstance related to the period of time taken to file the application. Even then, it would not have been an unreasonably long period taking into account all of the circumstances.
Exceptional cases also show that even longer delays can be justified. In Amycel v Spyra (UPC_CFI_195/2024, 31 July 2024), The Hague LD granted a PI despite a delay of nearly one year. The court accepted that infringement could only be proven after time-consuming biological testing and cultivation and that therefore the delay resulted from unavoidable evidence gathering, not strategic hesitation. While such cases remain rare, they confirm the UPC's flexible, fact-driven approach to urgency.
More recently, in Guardant Health, Inc. v Sophia Genetics SA and others (UPC_CFI_808/2025, 23 January 2026), the Paris CD held that a three-month period constituted a reasonable delay as the time was needed to prepare the application for provisional measures by gathering the necessary evidence, given that the case involved several patents and a complex and sophisticated technology.
Examples of cases where there was held to have been delay
In March 2025, in Barco v Yealink (CFI 582/2024, 21 March 2025), the Brussels LD also rejected the PI application also on the grounds of delay. Barco had not provided the court with a date at which it became aware of the alleged infringement, and argued it was not necessary because Barco could not initiate proceedings at the UPC before the date that unitary effect of its EP was registered (ie registration as a UP). The Brussels LD noted that it had jurisdiction to hear an application for provisional measures in relation to a "classical" EP and therefore the date of grant of the EP should have been the date considered the earliest that an application for a PI could have been filed as Barco could have amended the claims during UPC proceedings. Based on the parallel US proceedings, the Brussels LD concluded Barco would have been aware two and a half months before filing its application, which was sufficient to find a lack of temporal urgency.
This was upheld by the CoA in November 2025 (UPC_COA_317/2025, 28 November 2025), where the CoA concluded that the Brussels LD had correctly considered that Barco had waited an unreasonably long time to apply for provisional measures. The CoA found that Barco could have applied for unitary protection within a few weeks of grant, had Barco acted diligently, and this furthermore did not detract from the finding from the Brussels LD that Barco's knowledge of the allegedly infringing devices was from much earlier. The CoA concluded that Barco could have applied for provisional measures in July 2024. The CoA also did not accept arguments from Barco that products put on the market may be amended at short notice to avoid infringement, and this risk of amendments would lead to Barco's ability to undertake test purchases and analyse the products at an earlier time being frustrated. Barco's submissions that products that are put on a market can be altered at short notice by Yealink, to avoid patent infringement, and that the risk of such alterations would frustrate Barco's ability to make test purchases and carry out analysis at an earlier point in time, were rejected by the Court: "Barco's submissions that the rapid changes of products in this part are basically blank statements and cannot be accepted. Moreover, as a rule potential changes of products on the market do not justify a delay within the meaning of R. 211.4 RoP."
The decision of The Hague LD in Cilag v RiVolution in August 2025 provides another illustration of unreasonable delay, leading to the refusal of a PI application. Here a delay of over 5 months from the point at which the Applicant had, or should have had, after exercising due diligence, the reasonably necessary facts and evidence (within the meaning of R. 206.2(d) RoP) was considered too long. The court considered that Cilag had not demonstrated the necessary temporal urgency was not convinced by Cilag's reasonings for the delay. Cilag had tried to argue that urgency had been revived due to an expansion of a study using the allegedly infringing products, stockpiling and the potential announcement of a tender. However, this was rejected by The Hague LD, saying Cilag should have been aware the day it obtained a German injunction against the manufacturers for the same product. The Hague LD considered that in the context of UPC proceedings where a hearing on the merits is expected to take place within a year of filing of a claim, if a patentee acts with unreasonably delay, they should not be able to "jump the queue".
In Merz Therapeutics GmbH and others v. Viatris Santé (UPC_CFI_697/2025, 21 November 2025), mentioned above in the context of imminent infringement, the Paris LD rejected Merz's application for provisional measures against Viatris, finding that Merz had unreasonably delayed seeking interim relief after becoming aware of the alleged infringement, and ordered Merz to pay interim costs to Viatris.
The case in dispute has two distinctive features: the product alleged to be infringing is a generic version of a product protected by an SPC; and the rights to the title on which the application is based were repurchased by the Defendant during the same period when the administrative procedure for authorising the generic product to be placed on the French market was ongoing. This prompted the court to ask the question: In the context of a generic product, at what point was or should the person who purchased the rights have been informed of an event that could justify an application for interim measures?
The court held that either the moment when they became aware of infringement was imminent or the moment of actual infringement could be the trigger points for assessing delay, whichever was the earlier. Here the date by which all administrative procedures (including MA application, setting of prices and reimbursement rate) required to market in France were finalized (about which the patentee would have been informed by the authorities) was the trigger date for imminent infringement and thus the date from which delay would be judged, not the actual generic launch date. Viatris had informed the French Health Products Economic Committee on 3 October 2024 that it intended to market its generic product within six months, which was before the expiry of the SPC. The date of publication of the price of the generic in France was 22 November 2024 and the date of application for a PI was 31 July 2025 which was held to be unreasonable delay such that a PI would not be granted.
Abbott v MicroTech Medical (6 February 2026) – The Hague LD interprets the CoA
Most recently, Abbott's PI application against MicroTech Medical (Abbott Diabetes Care Inc. v MicroTech Medical (Hangzhou) Co., Ltd. and others UPC_CFI_830/2025, 6 February) provides a mini-review of the UPC's application of the unreasonable delay principle.
The Hague LD held that Abbott had not unreasonably delayed since it needed to conduct a test purchase and then test it in the US which took over a month to complete and then filed its claim six weeks after the completion of those tests.
The decision states: "It is settled case law of the UPC that an applicant may first gather all reasonably necessary evidence before filing its application for preliminary measures, even analysis that in hindsight was perhaps not necessary" (referring back to CoA 14 February 2025, UPC_CoA_382/2024 APL_39664/2024 (Abbott v Sibio), paragraph149; Dusseldorf LD, 31 October 2024, UPC_CFI_368/2024 (Valeo/Magna); Munich LD, 27 August 2024, PC_CFI_201/2024 (Syngenta/Sumi)).
The court also proceeded to reexamine the details of the Abbott/Sibio case (subject of the CoA decision referenced above) and assess the decision of the CoA in Barco/Yealink (also discussed above).
The Hague LD commented that in Abbott/Sibio, Abbott took 5 weeks after completion of the testing to issue proceedings, but that "[i]f one is to look also at the total amount of time, including analysis, in the Abbott/Sibio case, Abbott took from receipt of the test-purchases (first arrived 16 December 2023) until filing its application on 20 March 2024, [it was] a total of a bit more than 3 months."
Returning to the case in hand (Abbott v MicroTech), The Hague LD found that it took Abbott 2.5 months in total from receipt of an allegely infringing item for testing to filing the claim, and commented: "This is also less than the 3 months total recently allowed by the LD Paris" in Guardant Health (see above).
Turning to the Barco/Yealink CoA decision (see above), The Hague LD held that:
"Read in isolation, paragraph 89 of the Barco/Yealink order seems to indicate the CoA now deems one month and a few days (including testing, see paragraph 77) too long:
"The Court of Appeal considers that Barco could have made its test purchase on 12 June 2024, or very shortly thereafter. On 12 June 2024, Barco knew that it had a granted European patent, knew the content of the patent claims, and knew about Yealink's allegedly infringing devices. Following the arrival of the test products and the technical analysis (with the same time span as in the actual sequence of events), the Application for provisional measures could have been lodged on 15 July 2024, as rightly observed by the Local Division, or a few days later."
This panel does not think that was intended [emphasis added]. The panel rather sees "15 July 2024 or a few days later" as what the CoA deemed as the moment Barco could have filed its application (when the clock starts), and then filing the application on 2 October 2024 (2.5 months later, see paragraph 77 on the timeline in the case) the CoA regarded as too late. A stricter reading would mean the Barco/Yealink order is not congruent with the Abbott/Sibio order as well as other case law of the CFI, and more guidance could have been expected. The more so since the facts of the case already indicate a much longer delay of 2.5 months as mentioned."
In a parallel decision between the same parties in relation to a separate patent (UPC_CFI_875/2025) also delivered on the same day, The Hague LD held that filing the next day after three months of testing was not unreasonable delay.
In both decisions the court looked at the access that Abbott may have had to previous designs of the allegedly infringing embodiment, about which it had also corresponded. But this did not deter the court:
"Firstly, it is certainly not a given that the inner workings of this older version are the same, for purposes of patent infringement. Secondly, Abbott has made sufficiently clear that it was under the understandable impression from their correspondence that Defendants would refrain from marketing this older version in the EU, albeit on the grounds of unfair competition.
Nor is it reasonable to hold against Abbott that it had a specimen in its possession, picked up by two Abbott representatives in the ATTD conference from 19-23 March 2025 before it was on the market in the EU, which specimen however got lost. Abbott provided a sworn affidavit by its Senior Counsel in the IP litigation team that it was lost by the courier. Failing evidence to the contrary and given that there would be criminal consequences if this statement were incorrect, the Court will assume this loss indeed happened over which Abbott had no control. To hold differently would effectively mean that Abbott would be precluded from instituting an application for provisional measures through no clear fault on its part. This cannot be followed."
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