Order to preserve evidence (UPC)

An order to preserve evidence is the measure by which the Unified Patent Court authorises, before any judgment on the merits, the collection and preservation of evidence of an alleged infringement. Provided for by Article 60 of the Agreement on a Unified Patent Court and by Rules 192 et seq. of the Rules of Procedure, it is directly inspired by the French saisie-contrefaçon . The order to preserve evidence may be accompanied by an order to inspect premises.

The conditions of the order to preserve evidence

First, the applicant must present reasonably available evidence making it likely that its patent is being infringed or is about to be infringed. Next, it must describe precisely the measures requested: detailed description with or without the taking of samples, physical seizure of the products, of the materials and implements used to produce them and of the related documents, inspection of premises. Finally, the application may be examined without hearing the defendant where any delay is likely to cause irreparable harm or where there is a demonstrable risk of evidence being destroyed. The Court weighs the interests of the parties and may require security from the applicant.

Enforcement and follow-up

The order is enforced by a person appointed by the Court, generally a bailiff or an expert, possibly in the presence of a representative of the applicant bound by confidentiality. The evidence gathered is kept by the Court or by a third party, and its disclosure to the applicant is subject to measures protecting confidential information. The defendant may request a review of an order made without hearing it. The applicant must start proceedings on the merits within a period set by the Court, in principle thirty-one calendar days or twenty working days, failing which the order ceases to have effect and the defendant may claim compensation. The rules can be consulted on the website of the Unified Patent Court.

Key points

In practice, the order to preserve evidence gives the holder an evidentiary instrument with multi-territorial effect, whose implementation benefits from the French experience of the saisie-contrefaçon. The local divisions issued many orders from the first year, including for seizures at trade fairs. The firm acts for applicants and defendants, as presented on the pages evidence before the UPC and saisie-contrefaçon lawyer.

Pour aller plus loin : la proportionnalité, de l’affaire 10x Genomics à la saisie devant la JUB.