UPC CFI LD Düsseldorf, 30 April 2024: Provisional cease and desist order, subject to € 2 million security

Provisional cease and desist order, subject to Applicant providing € 2 million security (Article 62 UPCA, Rule 211 RoP).

Non-compliance with the substantive requirements for an application for provisional measures (Rule 206.2(d) RoP) may be to the detriment of the Applicant. A possible infringement of R. 206.2(d) RoP does not therefore lead to the Application being inadmissible. 

Rebuttable presumption that a person registered as the patent proprietor in the respective national register is entitled to be registered (Rule 8.5(c) RoP, Rule 211.2 RoP, Article 47 UPCA,). 

Claim interpretation and prosecution history (article 69 EPC). Statements made by the applicant in the granting procedure are not admissible material for interpretation. They are therefore generally not to be taken into account in the context of patent interpretation. 

Sufficient certainty of the validity of the patent for the ordering of provisional measures (Article 62 (4) UPCA, Rule 211.2 RoP). 

No award of damages possible in proceedings for provisional measures (article 62 UPCA, Rule 211(1) RoP). The content of provisional measures is exhaustively regulated in Art. 62 UPCA in conjunction with R. 211(1) RoP. The awarding of damages is not mentioned there. Its assertion is therefore reserved for the main proceedings. 

No security for legal costs of Defendant in urgent proceedings (Article 69(4)) UPCA, Rule 158 RoP, Rule 211.1(d) RoP). 

No reason for a decision on costs in proceedings for the ordering of provisional measures if, as in this case, a main proceedings follows the urgent proceedings. Unintended regulatory gap: interim award of costs  in favour of Defendant not provided for in urgent proceedings (Rule 118.5 RoP, Rule 211.1 RoP)

IPPT20240430, UPC CFI, LD Düsseldorf, 10x Genomics v Curio Bioscience