Case Law
Article 62: Provisional and protective measures

Court of Appeal – Luxembourg (LU), Order dated 11/03/2024, NanoString Technologies Inc.; NanoString Technologies Germany GmbH; NanoString Technologies Netherlands B.V. / President and Fellows of Harvard College; 10x Genomics, Inc. (Case number UPC_CoA_335/2023 ORD_595990/2023 (26.02.2024) and ORD_12169/2024)
Example of decision on the standard of proof required from the applicant to establish the imminent infringement of his patent in order to benefit from provisional measures: “Since the order for provisional measures is issued by way of summary proceedings pursuant to R. 205 et seq. RoP, in which the opportunities for the parties to present facts and evidence are limited, the Court of Appeal agrees with the Court of First Instance that the standard of proof must not be set too high, in particular if delays associated with a reference to proceedings on the merits would cause irreparable harm to the proprietor of the patent as provided for in Art. 62(2) and (5), 60(5) UPCA (see CJEU, judgment of 28 April 2022, Phoenix Contact, C-44/21, EU:C:2022:309, para. 32 with reference to Art. 9(1)(a) Directive 2004/48/EC). On the other hand, it must not be set too low in order to prevent the defendant from being harmed by an order for a provisional measure that is revoked at a later date pursuant to Art. 62(5), Art. 60(8) and (9) UPCA, R. 213 RoP, Art. 62(2) UPCA, cf. also Art. 9(7) Directive 2004/48/EC.”

Court of First Instance - Munich (DE) Local Division, Order dated 19/09/2023, NanoString Technologies Inc., NanoStrings Technologies Germany GmbH, NanoString Technologies Netherlands B.V. v. 10x Genomics, Inc., President and Fellows of Harvard College (Case number UPC_CFI_2/2023, ACT_459746/2023)
Example of decision assessing the sufficient degree of “certainty that the applicant is the right holder, in case of a request for provisional measures: The correct understanding of the term "sufficient certainty" must be based on the specific purpose of the conviction. In the case of Article 62(4)zand Rule 211(2) RoP, it must be taken into account in particular that it is a matter of ordering temporary provisional measures in summary proceedings (Rule 205 RoP) under Rule 213 RoP, not final orders within the meaning of Article 63 UPCA. In view of the provisional nature of the measures and the limited possibilities of discovery in summary proceedings in relation to proceedings on the merits, it follows that the standard of likelihood must be lowered. Therefore, a likelihood bordering on certainty cannot be demanded. Ultimately, for a sufficiently certain conviction of the validity of the patent at issue, a preponderant likelihood is necessary, but also sufficient. Therefore, for a sufficiently certain conviction on the part of the Court, it must be more probable that the patent is valid than not valid. “