Preliminary Injunctions at the UPC

How UPC preliminary injunctions work

UPC preliminary injunctions are provisional measures ordered by the Unified Patent Court (UPC) to stop an imminent or continuing patent infringement before a decision on the merits. The legal basis is Article 62 of the Agreement on a Unified Patent Court) (UPCA): the Court may grant injunctions against an alleged infringer or an intermediary, prohibit the continuation of the alleged infringement on a provisional basis — if necessary subject to penalty payments — or allow it to continue only against security.

It may also order seizure or delivery up of suspected infringing products and, where recovery of damages is endangered, precautionary seizure of assets. Procedure is governed by Rules 205–213 of the UPC Rules of Procedure (RoP).

The attraction is reach. A single order can cover every participating Member State in which the European patent (or a unitary patent) is in force and has not been opted out, rather than requiring parallel national applications. For defendants, the same feature multiplies the risk: one order can affect sales across much of the EU. Since the UPC opened on 1 June 2023, applications for provisional measures have become a central part of its case load, and the German local divisions in Munich, Düsseldorf, Mannheim and Hamburg are among the busiest.

The standard set by the Court of Appeal

The Court of Appeal defined the core test early, in 10x Genomics v NanoString (UPC Court of Appeal, order of 26 February 2024, UPC_CoA_335/2023). Under Article 62(4) UPCA, the Court must be satisfied "with a sufficient degree of certainty" that the applicant is entitled to sue and that the patent is infringed.

According to the Court of Appeal's order, this requires the court to consider it at least more likely than not that the applicant is entitled and the patent infringed. A sufficient degree of certainty is lacking if the court considers, on the balance of probabilities, that the patent is invalid — that is, if invalidity is more likely than not.

The burden of proof is split. The applicant must establish entitlement, infringement and the other facts supporting its request; the defendant bears the burden for facts showing invalidity, except where the order is issued without hearing the defendant. In the case itself, the Court of Appeal found the patent more likely than not invalid for lack of inventive step and set aside the first-instance injunction. The decision shows that validity attacks remain the defendant's main weapon in UPC preliminary injunctions.

Urgency and the balance of interests

The UPC does not apply a fixed deadline for urgency, but applicants must not delay unreasonably. Divisions have examined how long the applicant took after learning of the infringement and of the relevant facts — such as a product launch or the availability of samples — and whether the time was used for necessary preparation, for example testing products or obtaining expert opinions. Applicants should therefore document when they first became aware of the infringement and what they did afterwards. Waiting for several months without a good reason is risky.

Negotiations with the alleged infringer do not automatically excuse delay; if talks are held, the applicant should make clear that it reserves its rights and keep the period short. Delay attributable to obtaining reliable evidence is generally treated more favourably than delay caused by internal decision-making or budget approvals.

Under Article 62(2) UPCA, the Court has discretion to weigh the parties' interests, in particular the potential harm to either party from granting or refusing the injunction. Relevant factors include the market situation, the risk of price erosion, the defendant's position as a new entrant, the effect on third parties and the public interest, for instance in medical products. The Court may also allow the defendant to continue against security instead of prohibiting the conduct outright.

Scope of UPC preliminary injunctions: products, intermediaries and assets

The territorial scope is only one dimension. UPC preliminary injunctions can also be directed against intermediaries whose services are used by the alleged infringer — for example logistics providers, online marketplaces or distributors — which can be decisive where the manufacturer is outside the EU (Article 62(1) UPCA). The order may prohibit specific acts such as offering, placing on the market, importing or storing the product, and the applicant should define the attacked embodiments precisely, because enforcement depends on a clear description of what is prohibited.

Beyond injunctions, the Court can order the seizure or delivery up of suspected infringing products to keep them out of commercial channels, and — if the applicant shows circumstances likely to endanger the recovery of damages — precautionary seizure of the alleged infringer's movable and immovable property, including bank accounts (Article 62(3) UPCA). These measures are more intrusive and require a correspondingly strong showing. Freezing orders under Article 61 UPCA and orders to preserve evidence under Article 60 UPCA complement the toolkit and are often combined with an application for an injunction in a coordinated strategy.

Ex parte orders and protective letters

Provisional measures can be ordered without hearing the defendant, in particular where delay is likely to cause irreparable harm or where evidence may be destroyed (Article 62(5) with Article 60(5) UPCA). In practice, UPC divisions tend to hear the defendant unless urgency is exceptional. Where an order is made ex parte, the defendant must be notified without delay and can request a review.

Potential defendants can file a protective letter (Schutzschrift) with the UPC under Rule 207 RoP to set out in advance why an application should be rejected — for example, non-infringement, invalidity or lack of urgency. A protective letter is a cheap and effective tool when a competitor has sent a warning letter or a dispute is foreseeable, for instance before a trade fair. It remains on the register for a limited period and can be renewed. German national courts operate a separate central register for protective letters, so defendants concerned about national proceedings as well should file in both systems.

Security, enforcement and liability

The Court may require the applicant to provide adequate security to compensate the defendant for damage if the measures turn out to be unjustified (Article 62(5) with Article 60(7) UPCA; Rule 211 RoP). Divisions decide case by case whether security is needed and how much, taking into account the strength of the case, the defendant's potential loss and the applicant's ability to pay compensation. Enforcement follows the law of the Member State where the order is enforced, with penalty payments set by the UPC.

Provisional measures are not the end of the matter. If the applicant does not bring merits proceedings within 31 calendar days or 20 working days, whichever is longer, the Court must revoke the measures at the defendant's request (Article 62(5) with Article 60(8) UPCA). If the measures are revoked, lapse because of the applicant's act or omission, or it later turns out that there was no infringement, the Court may order the applicant to compensate the defendant for the damage suffered (Article 60(9) UPCA by analogy). This liability is strict in the sense that it does not depend on fault, which is an important consideration before enforcing.

UPC preliminary injunctions compared with German national courts

German regional courts also grant preliminary injunctions in patent cases, and many patentees still choose them for purely national disputes. The main differences concern scope and validity:

• Territory: German orders cover Germany; UPC preliminary injunctions can cover all participating Member States where the patent is in force.
• Validity: German courts traditionally require that validity be sufficiently secure, often meaning the patent has survived opposition or nullity proceedings, with exceptions; the UPC applies the "more likely than not" test from 10x Genomics, assessing validity itself.
• Procedure: both systems allow protective letters, but the registers are separate. The UPC procedure is written and front-loaded; German urgency practice is often measured in weeks.
• Opt-out: for European patents opted out of the UPC, only national courts are available; see our insight on the UPC opt-out strategy.

Our insight on interim injunctions in German courts explains national practice in more detail.

Practical checklist for applicants and defendants

Applicants

1. Secure evidence of infringement early, including test purchases and expert reports; consider a saisie under Article 60 UPCA if evidence is hard to obtain.
2. Assess validity critically, including prior art likely to be raised; the Court of Appeal's standard means a strong invalidity attack can defeat the application.
3. Act quickly and document the timeline to show no unreasonable delay.
4. Choose the division carefully and prepare for a hearing within weeks.
5. Budget for security and plan the main action within the statutory period.

Defendants

1. Monitor warning letters, trade fairs and competitors' patent portfolios.
2. File protective letters with non-infringement and invalidity arguments supported by documents.
3. Prepare a fast response team with technical experts.
4. Consider revocation actions at the central division or oppositions at the EPO to put validity in issue.
5. Evaluate settlement or licensing options early, given the potential multi-country effect.

How TRW & Co helps with UPC preliminary injunctions

We advise patentees and defendants on UPC preliminary injunctions and on national preliminary injunctions in Germany. For patentees, we assess whether an application is likely to succeed under the Court of Appeal's standard, prepare evidence and expert support, and handle security, enforcement and the main action. For defendants, we file protective letters at the UPC and in the German central register, develop invalidity and non-infringement defences, and assess liability exposure if an order is revoked. We coordinate UPC strategy with national proceedings and with EPO oppositions. See our pages on the Unified Patent Court and patent litigation, or contact us to discuss a case.