Opinions
The urgency requirement in UPC preliminary injunction proceedings: a case-by-case standard.
Delays in seeking provisional measures can undermine the admissibility before the Unified Patent Court (“UPC”). Yet, no fixed deadline exists. The urgency requirement is instead emerging through case law, which reveals a flexible but demanding standard. Recent decisions from Local Divisions and the Court of Appeal show how the UPC approaches this issue, leaving open key questions on harmonisation, exceptions, and the scope of urgency across different interim measures.
A non-codified standard shaped by case law
Before granting provisional measures, the Unified Patent Court must be satisfied that the Applicant acted without undue delay. This is not merely a procedural formality: urgency is a substantive requirement that reflects the exceptional nature of interim relief. It ensures that such measures are reserved for situations where swift intervention is truly necessary to prevent irreparable harm. Without urgency, the request is inadmissible -regardless of the strength of the underlying claim.
Rule 206(2)(c) RoP requires that any request for provisional measures be supported by a clear justification of necessity. This necessity is not abstract – it must be grounded in both temporal and factual circumstances. On the temporal side, Rule 209(2)(b) RoP explicitly refers to urgency, while Rule 211(4) RoP instructs the Court to consider whether there has been an unreasonable delay in filing the application. On the factual side, Rule 211(3) RoP requires the Court to weigh up the interests of the parties and, in particular, take into account the potential harm for either of the parties. Together, these provisions ensure that provisional measures are granted only when the applicant demonstrates a concrete and timely need for judicial intervention.
Neither the Unified Patent Court Agreement nor the UPC Rules of Procedure have codified a specific timeframe for filing a request for provisional measures. Instead, urgency is assessed in light of the circumstances of each case. The case law of the UPC Local Divisions and the Court of Appeal confirms this flexible, case-by-case approach, while offering some indicative timeframes
The Munich Local Division, in Dyson v. SharkNinja (UPC_CFI_443/2023 of 21 May 2024), accepted a delay of up to two months without finding it unreasonable, in view of the necessary prior examination of whether the defendants’ embodiments actually made use of the teaching of the patent in suit, whether legal enforcement was likely to be successful, and in view of the need for a corresponding serious preparation of the proceedings.
The Hamburg Local Division took a stricter stance, in Ballinno Ltd. v. UEFA (UPC_CFI_151/2024 of 3 June 2024), holding that the Applicant must file the application for the ordering of provisional measures within one month, also referring to previous decisions by the Düsseldorf Local Division (cf. UPC_CFI_452/2023 of 9 April 2024 and UPC_CFI_463/2023 of 30 April 2024).
Also another decision by the Düsseldorf Local Division (Valeo v. Magna, UPC_CFI_347/2024 of 31 October 2024), referred to a one-month period from the moment the patent holder becomes fully aware of the infringement, while clarifying that this should not be understood as a fixed deadline.
In a similar way, the Court of Appeal, in Mammut Sports Group AG v. Ortovox Sportartikel GmbH (UPC_CoA_182/2024 of 25 September 2024), emphasised that urgency must be assessed on a case-by-case basis and that whether there has been an unreasonably delay within the meaning of Rule 211.4 RoP depends on the circumstances of the individual case.
Open issues and interpretative trends
Despite the emerging case law, several questions remain unresolved.
One concerns whether the Court of Appeal will eventually provide harmonised guidance for “standard” cases. Another is whether certain circumstances – such as ongoing settlement negotiations or a recent intensification of the infringement – might justify a longer delay. These factors are recognised in some national systems, such as Italian case law, and could influence UPC practice in the future.
A further point of discussion is whether the urgency requirement applies equally to other interim measures, such as inspection or preservation of evidence. The Rules of Procedure do not explicitly differentiate the urgency threshold for these measures, but future case law may clarify whether a distinct standard applies.
Finally, the question of when the urgency clock starts ticking is also critical. According to the Lisbon Local Division in Ericsson v. Asustek (UPC_CFI_ 317/2024 of 15 October 2024), if the applicant does not indicate when they became aware of the infringement, and the Court cannot determine it independently, the court may solely rely on the date of the alleged infringement, for the assessment of unreasonable delay.
This newsletter is for the sole purpose of providing updates and general information and is not intended as legal advice on any particular or specific issue.
For clarifications or information, please contact the authors or your reference professional in the Intellectual Property area at our Firm.
Niccolò Ferretti, Partner
E: n.ferretti@nmlex.it
T.: +39 026575181
Emanuela Gaia Zapparoli, Counsel
E: e.zapparoli@nmlex.it
T.: +39 026575181
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