The UPC allows for the filing of protective letters, which can
be a useful strategy if there is a risk of a competitor applying
for a preliminary injunction or other provisional measures.
Picture the situation in which your company is launching a new
product onto the European market. You conducted a Freedom to
Operate (FTO) analysis before the launch and are aware of a
competitor's patent but are not too concerned since there are
reasonable arguments that the patent is invalid and that the new
product does not infringe. Moreover, you checked and the patent was
opted-out of the UPC.
However, the competitor becomes aware of the launch, opts the
patent back into the UPC, and makes an Application for provisional
measures. The competitor is successful in seeking an injunction,
and the launch of the new product is on hold. At the UPC, the Court
can exercise its discretion on inviting the defendant to object to
the Application, and could potentially order the provisional
