First UPC Preliminary Injunction Issued Ex Parte Despite Protective Brief

After an application was  filed on June 22, 2023, the Local Division Düsseldorf (Germany) issued  one of the Unified Patent Court‘s (UPC) first preliminary injunctions on the same day. It relates to the dispute between myStromer AG against Revolt Zycling AG on infringement of the European Patent EP 2 546 134 which protects a “Combination structure of bicycle frame and motor hub”. According to its wording, the injunction covers the UPC member states, where the patent is in force, in particular Germany, the Netherlands, France, and Italy.

The reasoning is very concise. The Respondent had previously submitted a protective brief raising defenses such as exhaustion. After confirming infringement, the judges briefly dealt with the defense arguments and rejected them without hearing the Respondent (ex parte injunction). The Court considered the case  urgent (Rule 209.2 (b) of the Rules of Procedure) due to an upcoming trade fair where the attacked embodiments were supposed to be shown. The Division held the patent’s validity was sufficiently secured. Neither opposition nor nullity proceedings had been brought and the Respondent had not provided relevant prior art. Hence the Court granted the injunction.

3 Take Aways

• UPC preliminary injunction proceedings can be extremely fast.

The UPC is fully prepared to deal with applications for preliminary injunctions in an extremely speedy manner. Injunctions may even be granted within one day , depending on the urgency of the case.

• Applicants can get an ex parte injunction in case of urgency.

The judges have discretion when deciding on the preliminary injunction, in particular whether they want to hear opposing party or not. If applicants can build a strong urgency case, chances for an ex parte injunction should be good, provided that all other requirements for its grant are met.

• Potential Respondents should be cautious with protective briefs.

The protective brief did not prevent the grant of an injunction. It may  have even triggered the issuance of an ex parte injunction since the Court was able to deal with the Respondent’s defense arguments. Potential infringers who fear the grant of a preliminary injunction should thus carefully weigh the pros and cons when considering such a brief.