UPC evidence preservation orders: the UPC saisie in practice

The drafters of the Agreement on a Unified Patent Court knew the French saisie-contrefaçon. They kept its measures, and they inverted its philosophy: where French law makes surprise the principle, Article 60 UPCA makes adversarial debate the rule and ex parte proceedings the exception. The UPC saisie was born of that distrust.

Two and a half years of practice have nevertheless brought the measure closer to its model. The Milan and then Paris local divisions have granted ex parte preservation of evidence within very short timeframes, and in 2025 the Court of Appeal set a standard markedly more favourable to the applicant than the texts suggested. Understanding this regime of evidence before the UPC, its conditions and its case law has become essential for anyone choosing between the national route and the unified route.

The texts: Article 60 UPCA, Rules 192 to 199

Article 60 of theUPCA allows the Unified Patent Court to order, even before proceedings on the merits have begun, prompt and effective measures to preserve evidence, at the request of a patentee who has presented reasonably available evidence to support its claim of infringement. Rules 192 to 199 of the Rules of Procedure organise their implementation: content of the application (Rule 192 RoP), examination by the Court (Rule 194 RoP), content of the order (Rule 196 RoP), procedure without hearing the defendant (Rule 197 RoP), period for starting proceedings on the merits (Rule 198 RoP).

The available measures cover most of the French toolbox: detailed description with or without the taking of samples, physical seizure of the allegedly infringing products, seizure of the materials and implements used for their production or distribution, preservation and disclosure of digital media. Enforcement is entrusted to a professional person or expert who guarantees expertise, independence and impartiality; the applicant's employees and officers are excluded from the operations, while its representative may attend.

These provisions derive from Directive 2004/48/EC, from which they retain the proportionality test: the Court weighs the interests of the parties before setting the scope of the measures it authorises.

Three inversions of the French model

• Adversarial debate is the principle. The order is made without hearing the defendant only where any delay is likely to cause irreparable harm to the applicant or where there is a demonstrable risk of evidence being destroyed (Article 60(5) UPCA and Rule 197 RoP). French law takes the opposite position: the saisie-contrefaçon under Article L. 615-5 of the French Intellectual Property Code is always ordered on ex parte application.
• The operations are conducted by an independent expert, not by the applicant's advisers. The applicant attends only through representation, whereas the French saisie relies on the presence of the patentee's usual patent attorney, who knows the patent and knows what to look for.
• Proportionality operates in two stages: reasonable evidence at the stage of grant, weighing of the parties' interests at the stage of the scope of the measures. The judge may therefore grant the measure in principle while significantly restricting its perimeter.

What practice has corrected: Milan, then Paris

The fear of an unusable procedure has not materialised. As early as June 2023, a few days after the Court opened, the Milan local division ordered ex parte measures of description at the ITMA trade fair, in the cases brought by Oerlikon against Himson and Bhagat: applications filed on 12 and 13 June 2023, orders issued before the end of the fair, the impossibility of summoning the defendants before its close justifying the absence of adversarial debate.

The Paris local division followed with C-Kore v Novawell (UPC_CFI_397/2023): by an order of 14 November 2023, it authorised ex parte a measure to preserve evidence at the defendant's premises, relying on the risk of concealment or deletion of digital data and on the mobility of the accused product. The appointed expert, assisted by a bailiff and one of the applicant's lawyers, was to deliver his report within seven days; a security of EUR 20,000 was required; access to the collected material was reserved to a confidentiality club established by reference to Directive (EU) 2016/943. C-Kore brought its action on the merits on 8 December 2023, within the 31-day period of Rule 198 RoP.

The defendant is not left without recourse: Rule 197.3 RoP opens a review procedure against an order made without a hearing, which Novawell exercised, the hearing taking place before the Paris division in February 2024. An ex parte measure is therefore never definitively acquired: it must be defended afterwards, just as the sequestration must be defended in France.

The Court of Appeal's standard: a saisie is not an injunction

On 15 July 2025, the UPC Court of Appeal set the standard in cases UPC_CoA_327/2025 and UPC_CoA_002/2025 (TIRU v Valinea and Maguin), drawing a clear line between the preservation of evidence and provisional measures. The applicant does not have to establish the validity of the patent with the degree of certainty required for a preliminary injunction: the presumption of validity suffices, unless it is clearly called into question, for instance by an EPO opposition decision. Urgency is assessed against the window available to preserve the evidence, not against a requirement of diligence on the applicant's part. In return, the duty of candour of a party applying ex parte extends to obvious material facts capable of calling validity into question, such as parallel revocation proceedings.

This standard confirms the evidentiary function of the measure: the point is to freeze the evidence, not to prejudge the merits. It brings the UPC saisie close to the French threshold, where reasonable indications condition the scope of the measures far more than the principle of the order.

Confidentiality: the club rather than sequestration

Before the UPC, the protection of the seized party follows its own route. Rule 196 RoP allows disclosure of the collected evidence to be limited to certain named persons, bound by non-disclosure undertakings, and the Court hears the defendant before setting the extent of that disclosure. This is the confidentiality club, directly inspired by Directive (EU) 2016/943 on the protection of trade secrets.

In France, the same function is performed by the provisional sequestration of Article R. 153-1 of the French Commercial Code, which the French Supreme Court has made the exclusive route for protecting the seized party: we analyse it in our study of the protection of the seized party's trade secrets. The two mechanisms share neither the same timetable nor the same burden: the sequestration is decided within the month following service; the club is negotiated when the Court sets access to the evidence.

Choosing between the two forums

The UPC regime prevails where the action on the merits will be brought before the unified court: the evidence is gathered within the procedural framework that will judge it, and its reach extends to all participating States. The French saisie keeps the advantage where the evidence must serve outside Europe, where the assistance of the usual patent attorney is decisive or where the surprise effect must be guaranteed: our decision matrix between the French saisie and the UPC saisie details this trade-off, and the saisie conservatoire under Article 145 completes the toolbox where the evidence is intended for foreign proceedings.

A party fearing the measure is not defenceless: filing a protective letter reduces the likelihood of an ex parte order, and the review under Rule 197.3 RoP remains available afterwards. One must finally reckon with a court that embraces an assertive procedural policy on other fronts, as shown by its anti-anti-suit injunctions : the preservation of evidence is part of that assertion.

Key takeaways

• Article 60 UPCA and Rules 192 to 199 RoP offer measures comparable to the French saisie, but with an inverted philosophy: adversarial debate in principle, ex parte by exception.
• Milan (Oerlikon, June 2023) and then Paris (C-Kore, order of 14 November 2023) granted ex parte measures within very short timeframes: practice has brought the UPC saisie closer to its model.
• The action on the merits must be started within 31 calendar days or 20 working days, whichever is the longer (Rule 198 RoP), failing which the measure ceases to have effect at the defendant's request.
• On 15 July 2025 (UPC_CoA_327/2025), the Court of Appeal held that the preservation of evidence does not follow the standard of preliminary injunctions: presumption of validity, urgency assessed against the preservation window, reinforced duty of candour.
• Confidentiality is ensured through clubs of named persons (Rule 196 RoP), not through French-style sequestration.
• The choice between the French saisie and the UPC saisie is made before the first formal step, according to the forum of the action on the merits.

Frequently asked questions

Is the UPC saisie granted ex parte?

Yes, where any delay is likely to cause irreparable harm or where there is a demonstrable risk of evidence being destroyed (Article 60(5) UPCA and Rule 197 RoP). The Milan and Paris divisions accepted this as early as 2023, and in 2025 the Court of Appeal confirmed a standard accessible to a diligent applicant.

What is the deadline for the action on the merits after the measure?

Rule 198 RoP requires proceedings on the merits to be started within 31 calendar days or 20 working days, whichever is the longer. Failing that, the measures are revoked or cease to have effect at the defendant's request, and the defendant may seek compensation.

Who has access to the collected evidence?

Rule 196 RoP allows disclosure to be reserved to named persons bound by non-disclosure undertakings, the defendant being heard before the Court sets the extent of access. In C-Kore, the order established a confidentiality club by reference to Directive (EU) 2016/943.

How can a company protect itself against a UPC saisie?

Through anticipation: mapping its trade secrets, filing a protective letter where a measure appears likely, preparing the review procedure under Rule 197.3 RoP and, where appropriate, challenging the security and the scope of the mission once adversarial debate is restored.

A regime argued on both sides

The preservation of evidence before the Unified Patent Court is prepared like a saisie: scope, timetable, confidentiality and forum are decided together, before the application. Dhenne Avocats prepares and conducts these measures for applicants, and organises the defence of the seized party, before the UPC as well as before the Paris Judicial Court. Talk to us.

This article is an original and substantially updated adaptation of an analysis by Matthieu Dhenne first published on Kluwer Patent Blog on March 14, 2024: UPC "saisie-contrefaçon" Part I: the texts.