LD Milan, November 22, 2024, Application For Provisional Measures, UPC_CFI_400/2024

1. Key takeaways

Examination of the application for provisional measures

In proceedings for provisional measures, the Applicant is required to provide cumulatively reasonable evidence to satisfy the Court with a sufficient degree of certainty that: (i) the Applicant is entitled to initiate proceedings under Art. 47 UPCA; (ii) the patent is valid; (iii) its rights are being infringed or that such infringement is imminent (R. 211.2 RoP). Additionally, the balance of interests must be in favour of the Applicant (R. 211.3. RoP). Therefore, the absence of any one of these requirements is sufficient to warrant dismissal of the application.

In the present case, the Court found an insufficient degree of certainty that the patent is valid because it lacks novelty, wherein the Court applied a claim interpretation based on Art. 69 EPC and the Protocol on its interpretation as well as UPC case law, in particular Düsseldorf Local Division, UPC_CFI_463/2023; Court of