UPC Legal Compass: Ready, Set, Stop – Preliminary Injunctions

INTRODUCTION

Preliminary injunctions are an extremely valuable tool in a patentee's armoury. They offer a powerful mechanism to stop infringement in its tracks, and they put considerable pressure on defendants, who risk their plans being scuppered at a crucial time. The consequences are far reaching, with injunctions potentially covering the 18 UPC Member States, plus additional countries under the UPC's 'long-arm' jurisdiction (following the CJEU decision in BSH v Electrolux (C-339/22, 25 February 2025)).

From the start of the UPC, seeing the way in which applications for preliminary injunctions play has been of great interest to practitioners and clients. At the outset, how the UPC would take into account issues such as the merits of the case and the need for urgency in making the application, which differ to some extent between the national courts, was a complete unknown. No-one knew how willing to grant PIs the UPC might be. But thanks to a considerable number of PI applications in the UPC, and the speed with which they have been considered, decisions from the UPC Court of Appeal and Local Divisions are now providing some clarity and themes are becoming apparent. More PI applications have been successful than not, indicating that the UPC certainly does not shy away from granting injunctive relief at a preliminary stage.

LEGAL FRAMEWORK UNDER THE UPCA AND THE RULES OF PROCEDURE

Under Article 62 UPCA and Rules 206–213 RoP, the UPC may grant preliminary measures, including injunctions. An order for a PI is intended to prevent imminent infringement or to prohibit the continuation of an alleged infringement (or make the continuation subject to lodging a guarantee).

In an application for a PI, the applicant needs to demonstrate necessity, i.e. why provisional measures are necessary, with accompanying evidence (Rule 206.2(c) & (d)).

The court also considers:

• The merits – the court may require evidence to satisfy itself, with a sufficient degree of certainty, that the applicant is entitled to commence proceedings, and that the patent is valid and being infringed (or that infringement is imminent) (Art 62(4); Rule 211.2).

• The balance of interests – the court can weigh up the interests of the parties and take into account the potential harm for either of the parties resulting from the granting or the refusal of the injunction (Art 62(2); Rule 211.3). 

• Timing – the court must have regard to any unreasonable delay in applying for a PI (Rule 211.4).

PI decisions can be (and frequently are) appealed to the UPC Court of Appeal.

CONSIDERATION OF THE MERITS

In considering an application for a PI, the UPC takes a particular interest in the merits of the case. PI proceedings are effectively a “mini-trial”, with the UPC carrying out a thorough examination of validity and infringement. This is in stark contrast to many national proceedings where the merits may not be taken into account at all, or may be limited to influence from prior national decisions and/or the EPO prosecution file.

A PI will only be granted if, on the balance of probabilities, it is more likely than not that the patent is valid and infringed (UPC_CoA_335/2023, 26 February 2024).

Expert declarations and technical exhibits may be critical, and the UPC will consider experimental evidence (see, for example, UPC_CoA_523/2024, 3 March 2025). Evidence must be filed with the initial application as late filings are often rejected (see, for example, UPC_CoA_335/2023, 26 February 2024).

NECESSITY AND THE BALANCE OF INTERESTS

The UPC will take into account the necessity of the PI and the balance of interests. Relevant factors include the following:

• The expected timing of a full decision on the merits and whether this can be awaited. If it can, a PI is not necessary. Provisional measures will be necessary, for instance, where any delay would cause irreparable harm to the patentee, although, unlike in some of the national courts, irreparable harm is not a necessary condition for the grant of a PI (UPC_CoA_182/2024, 25 September 2024 / UPC_CoA_540/2024, 24 February 2024).

• Commercial factors that may lead to loss of market share and permanent erosion of price, such as the price differential between the allegedly infringing product and the patentee's product; whether the allegedly infringing product is in direct competition with the patentee's own product; whether the alleged infringement will be the first competing product; and an expectation of "aggressive pricing" (see, for example, UPC_CoA_540/2024, 24 February 2024 / UPC_CoA_382/2024, 14 February 2025 / UPC_CFI_387/2025, 14 August 2025 / UPC_CFI_515/2025, 17 October 2025 / UPC_CFI_553/2025, 21 October 2025 / UPC_CFI_624/2025, 17 October 2025).

• Third party interests, particularly in healthcare contexts where issues such as supply chain impact and availability of alternatives may be of relevance because of the potential harm to third parties, such as patients (see, for example, UPC_CoA_27/2025, 25 November 2025).

• The potential for reputational harm to the patentee due to the allegedly infringing products being inferior (see, for example, UPC_CFI_515/2025, 17 October 2025).

• The status quo – a PI may not be considered necessary if the allegedly infringing products are already on the market (see, for example, UPC_CoA_540/2024, 24 February 2025), but not in all cases (see, for example, UPC_CoA_382/2024, 14 February 2025).

TIMING

How quickly after becoming aware of the allegedly infringing product does a patentee need to act in order to secure a PI, and what is the trigger for the clock to start ticking? 

Urgency

Patentees must act without delay to seek a PI (UPC_CoA_335/2023, 26 February 2024), but what amounts to delay? It depends on the circumstances of the case.

There is not yet any clear guidance as to how many weeks a patent owner might be allowed for preparing and filing a PI application. Whilst some decisions suggest that 6-8 weeks from becoming aware of the allegedly infringing product will be acceptable (see, for example, UPC_CFI_213/2025, 10 July 2025 / UPC_CFI_449/2025, 3 September 2025 / UPC_CFI_624/2025, 17 October 2025), others suggest a stricter approach allowing only a month (see, for example, UPC_CFI_347/2024, 31 October 2024).

A delay of several months has been shown to be unacceptable in some cases (see, for example, UPC_CFI_374/2025, 28 August 2025, where the delay was 5 months), but not in all circumstances. Recent case law suggests that some leniency may be shown if, for example:

• There are delays in acquiring test product – In UPC_CoA_523/2024, 3 March 2025, 4 months was acceptable due to delays in customs clearance for the product.

• There is an intervening holiday period – In UPC_CoA_382/2024, 14 February 2025, 5 months was an acceptable period to obtain and inspect samples taking into account that these steps fell over a holiday.

• Testing is particularly complex – In UPC_CFI_195/2025, 31 July 2024, 9 months was not considered to be unreasonable delay given the need for genetic and morphological testing and analysis of a mushroom strain.

On your marks…

So when does the clock start ticking? In a case of imminent infringement, whether the applicant has acted with sufficient speed will only be assessed from the point in time at which the threat of infringement was imminent (UPC_CFI_553/2025, 21 October 2025). It is important to note that if the clock has started ticking because of imminent infringement, it will not be reset when actual infringement begins (UPC_CFI_697/2025, 21 November 2025).

So what is imminent infringement? The test centres on whether the alleged infringer has already "set the stage" for infringement to occur so that the infringement is only a matter of starting the activity (UPC_CFI_165/2024, 6 September 2024, as confirmed by the Court of Appeal in UPC_CoA_446/2025 & UPC_CoA_520/2025, 13 August 2025).

Again, the UPC differs from at least some of the national courts in considering which activities pass the test for imminent infringement. For example, in life sciences cases:-

• Applying for or obtaining a marketing authorisation alone will not meet the test (UPC_CFI_165/2024, 6 September 2024 / UPC_CoA_446/2025 & UPC_CoA_520/2025, 13 August 2025).

• Completing national procedures for health technology assessment, pricing and reimbursement for a generic medicine may meet the test, depending on the circumstances, such as the local regulatory procedures and legislation (UPC_CoA_446/2025 & UPC_CoA_520/2025, 13 August 2025/ UPC_CFI_697/2025, 21 November 2025).

• Passing a conformity assessment and obtaining a CE mark for a medical device may meet the test, particularly if accompanied by active marketing such as communication of an intention to market the allegedly infringing product at trade fairs, and presence at key conferences (UPC_CFI_553/2025, 21 October 2025).

APPEALS

Given the value of a PI and the relatively young status of the UPC, it is not surprising that numerous PI decisions have ended up before the UPC Court of Appeal. The Court of Appeal has shown willing to follow its own path and reach a different conclusion to the lower Court, where appropriate. Unlike many national courts, the UPC Court of Appeal is prepared to revisit factual and technical as well as legal assessments made by the Court of First Instance.

On appeal, new requests, facts and evidence which weren't before the lower court may be disregarded unless the party seeking to rely on them can justify that they could not reasonably have been made during proceedings before the lower court, and clearly demonstrate the relevance of the new submissions for the decision on the appeal. This is especially the case when new requests, facts and evidence are introduced at a late stage (Rule 222.2; UPC_CoA_540/2024, 24 February 2025).

OUTLOOK

Thanks to the evolving body of case law, the direction of travel on preliminary injunctions is becoming clearer and the UPC has been shown to be willing to grant early relief. It is unafraid of rigorous merits analyses at the interim stage, and of diverging from national approaches. Parties must be prepared for robust scrutiny, and careful timing and well‑prepared evidence are essential.

Whilst applicants and defendants have clearer guidance on urgency, evidence requirements, and what constitutes imminent infringement, the Court of Appeal’s readiness to revisit lower court reasoning means that PI outcomes may remain somewhat unpredictable in the short term. However, the defined legal principles are starting to take shape and the practical playbook for applicants and defendants is becoming more reliable. All signs indicate that the UPC will remain a strategically important forum for rapid, decisive action in cross‑border patent disputes.