UPC Legal Compass: Understanding Evidence Preservation and Inspection Orders under the UPC Agreement

Similar to what is known from most of the national European Laws, also the Unified Patent Court (UPC) Agreement provides for significant provisions for preserving relevant evidence and conducting on-site inspections. These measures are particularly helpful in case the patent owners have difficulty to collect necessary infringement evidence for subsequent patent infringement proceeds as the burden of proof of patent infringement lies with the plaintiff. However, and in line with national case law, any such proceedings shall not be abused as fishing expeditions which is why the UPC has been developing case with respect to the threshold and requirements for successfully requesting evidence preservation and inspection orders.

Key Take Aways

Jurisdiction for Evidence Preservation and Inspection Orders: The division hearing the proceedings on the merits (i.e. the actual infringement complaint), do have jurisdiction for the application for preservation of evidence and/or order for inspection.

Application Requirements

A patent owner, applying for evidence preservation and/or inspection orders, needs to consider the following key take aways from recent decisions:

• The application needs to identify any reasonably available evidence to support the allegation of infringing the patent (see LD Paris, UPC_CFI_814/2024, order 24 March 2025).
• The application needs to mention the exact location of the evidence where it is known or suspected with good reason. Seizing products “at any other location” or “on all days and hours” does not comply with the principle of certainty and proportionality (see LD Düsseldorf, UPC_CFI_260/2025, order 26 March 2025).
• In case the patent owner seeks for an order to preserve evidence/inspection without hearing the other side (ex parte proceeding), it shall set out the reasons (like delay causing irreparable harm or demonstrable risk of evidence being destroyed or otherwise ceasing to be available) why it is not possible to hear the other side before making an order (see LD Paris, UPC_CFI_813/2024 and UPC_CFI_814/2024, orders 24 March 2025).

Urgency and Risk of Evidence Loss in Ex Parte Proceedings

The Court takes into account the urgency of the action and the probability that evidence may be destroyed or otherwise cease to be available (see LD Düsseldorf, UPC_CFI_260/2025, order 26 March 2025). This may be the case if products are not available on the market but be exhibited at a trade fair justifying an order ex parte (see LD Düsseldorf, UPC_CFI_260/2025, order 26 March 2025).

An ex parte proceeding does not require proof of the certainty of the loss or destruction of evidence, but only that there is a risk of even a partial loss of evidence (see LD Paris, UPC_CFI_813/2024, order 24 March 2025).

Content of the order

The Court may, in particular, order to physical seize allegedly infringing goods and related documents as well as to preserve and disclose of digital media and data and any passwords necessary to access them.

The order shall specify a professional person or expert, who guarantees expertise, independence and impartiality who shall carry out the measures (under certain circumstances a bailiff).

Conclusion

Staying informed about these provisions is essential for ensuring your legal strategies are effective and compliant with the UPC Agreement. Should you have any further questions or require assistance, please do not hesitate to contact us.