The UPC's Local Division The Hague (LD) has issued an order in Cilag GmbH International and Ethicon LLC v. RiVOLUTiON GmbH (UPC_CFI_374/2025), dismissing an application for provisional measures on the grounds of lack of urgency. The decision confirms that applicants must act quickly when preparing and filing preliminary injunction applications at the UPC.
The dispute concerns European patent EP 3 689 262, relating to surgical staple cartridges. Cilag, part of the Johnson & Johnson group, alleged that Rivolution was distributing infringing cartridges manufactured by Chinese suppliers Bluesail and David Medical. Having secured national injunctions against the manufacturers in Germany, Cilag sought UPC-wide provisional measures against Rivolution.
The LD dismissed the application, holding that Cilag had acted with unreasonable delay. The Court found that Cilag became aware of Rivolution's activities as early as November 2024, when Rivolution promoted its "Bariatric Study" involving the contested cartridges at an industry event called the "Frankfurt Meeting". On 12 November 2024, Cilag successfully obtained an ex parte injunction in Germany against David Medical for identical products, demonstrating that sufficient evidence was already available at that time. However, Cilag only filed its UPC injunction application in late April 2025, more than five months later.
Cilag's attempt to revive urgency by pointing to intensification of infringing acts (a factor which can be taken into account at least in some European jurisdictions) was rejected. The LD held that these developments were foreseeable and did not create new urgency. As the Judges emphasised, a patent holder who delays cannot effectively "jump the queue" by obtaining expedited protection given that main proceedings at the UPC are designed to conclude within just over a year.
The LD also dismissed Cilag's arguments that infringement had only been established in March 2025 after a complex infringement analysis of Cilag's patent portfolio. As the LD observed, infringement of the parent of the patent in suit had already been established by Cilag in November 2024, and the claims of each of those patents were closely aligned.
This ruling provides a reminder that the UPC requires both temporal (i.e. move quickly) and objective (i.e. imminent harm) urgency for provisional measures. Patent owners must act swiftly once infringement is apparent and cannot rely on later commercial developments to revive urgency where those developments are foreseeable and probably not where those developments are sufficiently meaningful.
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