Protective Letters Before The UPC: The First Court Orders And Decisions

Under the Unified Patent Court (UPC) Agreement, a claimant seeking provisional measures based on a non-opted out European patent or a European patent with unitary effect ("unitary patent") may file an application for provisional measures before the main proceedings have been started (Rule 206 of the Rules of Procedure of the UPC (RPUPC). More importantly, the claimant may obtain the provisional measures without the defendant being heard to oppose the application, in particular where any delay is likely to cause "irreparable harm" to the applicant or where there is a "demonstrable risk of evidence being destroyed" (Rule 212 RPUPC). One of the more common uses of such applications is to prevent a competitor from promoting an allegedly infringing item at an upcoming trade fair.