CoA, December 3, 2024, Appeal Decision On Request For Preliminary Measures, UPC_CoA_297/2024

1. Key takeaways

When the Court adjudicates on an application for provisional measures pursuant to R. 211.2 RoP in conjunction with Art. 62(4) UPCA, a sufficient degree of certainty (see also Art. 9(3) Directive 2004/48/EC) requires that the court considers on the balance of probabilities, that it is more likely than not, that the Applicant is entitled to initiate proceedings and that the patent is infringed. A sufficient degree of certainty is lacking if the Court considers it on the balance of probabilities to be more likely than not that the patent is not valid (marginal no. 26).

Insofar as is relevant here, the burden of presentation and proof for facts allegedly establishing the entitlement to initiate proceedings and the infringement or imminent infringement of the patent, as well as for all other circumstances allegedly supporting the applicant's request, lies with the applicant. Whereas the burden of presentation and proof for facts concerning the lack