Procedural Uncertainty and the UPC: Provisional Measures, Evidence and Costs

The Unified Patent Court was meant to deliver predictable European patent litigation. Three years in, a party filing for provisional measures cannot always tell, on the day of filing, how demanding the seized division will be. Until the judge rules, the patent sits in a state reminiscent of Schrödinger's cat: neither fully enforceable nor fully fragile.

This procedural uncertainty stems from the texts themselves, which leave wide discretion to the judge, and from the decentralised structure of the Court of First Instance. It creates risk, and also room for manoeuvre for those who know how to read it.

Rules that leave the judge in charge

Three areas account for most of the unpredictability.

Evidence

Rules 170 to 190 of the Rules of Procedure govern the taking of evidence: production of documents, protection of confidential information, experts and orders to take evidence. They set a framework but leave most practical choices to the division, from the scope of the confidentiality club to the format of exhibits and the appointment of a court expert. The same request may therefore be handled quite differently from one division to another, with a direct effect on evidence preservation and case preparation.

Interim measures

Article 62 UPCA makes provisional measures conditional on the Court being satisfied, with a "sufficient degree of certainty", that the applicant is entitled to the patent and that it is being or is about to be infringed. Rules 205 to 213 set out the procedure, and Rule 209(2) requires the Court to consider urgency. No provision, however, lays down a uniform threshold for either validity or urgency.

Costs

Recoverable representation costs are capped according to the value of the dispute under the Administrative Committee decision of 24 April 2023, up to EUR 2 million per instance. The decision of 4 November 2025, applicable to actions filed on or after 1 January 2026, also raised the court fees. The fixed fee for an infringement action rose from EUR 11,000 to EUR 14,600 and for a revocation action from EUR 20,000 to EUR 26,500, while applications for provisional measures now attract a value-based fee on top of the fixed fee. An application to preserve evidence rose from EUR 350 to EUR 5,000. In return, the reduction for small and micro enterprises increased from 40% to 50%. Budgeting a UPC case is therefore harder than originally advertised.

Speed or rigour: two readings of the same text

Two cases illustrate the tension.

In 10x Genomics v. NanoString, the Munich Local Division granted a cross-border preliminary injunction on 19 September 2023, requiring that validity be more likely than invalidity. The Court of Appeal reversed on 26 February 2024 (UPC_CoA_335/2023). It adopted a broader reading of claim 1, found inventive step doubtful and set the standard that has guided the Court ever since: the required degree of certainty is lacking where the judge considers, on the balance of probabilities, that the patent is more likely than not invalid.

Conversely, on 22 November 2024 the Milan Local Division dismissed the application for provisional measures filed by Insulet against Menarini (UPC_CFI_400/2024). It expressed serious doubts on validity and held auxiliary requests to amend the claims inadmissible in provisional proceedings. The level of scrutiny came close to that of proceedings on the merits.

Later case law has refined the picture without removing the uncertainty. Where an EPO opposition is pending, the Hamburg Local Division held on 26 June 2024 in Alexion v Samsung Bioepis (UPC_CFI_123/2024), that the judge must also weigh the likelihood of revocation by the Opposition Division. The refusal was upheld on appeal on 20 December 2024 (UPC_CoA_402/2024). On urgency, the Court of Appeal accepted on 17 April 2026, in Abbott v Sinocare and Menarini (UPC_CoA_901/2025), that eight weeks between product launch and filing was reasonable where in-depth analysis was needed, time running from the date the product became available for examination.

The Court of Appeal is thus doing its harmonising work. Yet its orders come months after the first-instance decision, and each settles only one aspect of the standard. In the meantime, litigants carry the risk of a reversible order.

What uncertainty makes possible

Uncertainty has a strategic upside. The observed practice of each division, beyond language and geography, becomes a factor in the choice of forum. The cost and unpredictability of proceedings encourage settlement, which the new fee table rewards by refunding 65% of court fees where the parties settle through the PMAC before the interim procedure is closed. Finally, the opt-out, still available during the transitional period, allows patent holders to keep part or all of their portfolio outside the UPC while the case law settles.

These options mainly benefit players able to fund several fronts and absorb an adverse costs order. For an SME, a failed application for provisional measures may mean reimbursing substantial representation costs, which deters action even on the strength of a solid patent.

Reducing uncertainty without rigidifying the Court

Four avenues seem realistic. Closer coordination between divisions, under the Presidency of the Court of First Instance, would narrow differences in practice. Published guidance on confidentiality and on the standards for provisional measures would give litigants a common reference. A simplified track for technically straightforward cases would lower the cost of access. Joint training for judges and representatives would foster a shared procedural culture.

None of these avenues requires amending the Agreement. They only require the UPC to treat predictability as an objective on a par with speed.

Key takeaways

• Article 62 UPCA and Rules 205 to 213 leave the judge wide discretion on validity and urgency in provisional proceedings.
• Since NanoString (CoA, 26 February 2024), provisional measures are refused where the patent is more likely than not invalid.
• A pending EPO opposition weighs on the assessment of validity at the provisional stage.
• Court fees rose on 1 January 2026, and applications for provisional measures now carry a value-based fee.
• Choice of division, settlement and the opt-out remain the main levers for turning uncertainty to advantage.

Frequently asked questions

What degree of certainty does the UPC require to grant provisional measures?

The judge must be satisfied, with a sufficient degree of certainty, of both validity and infringement. According to the Court of Appeal, that certainty is lacking where invalidity appears more likely than validity on the balance of probabilities.

How long can a patentee wait before applying for provisional measures?

There is no fixed deadline. The Court of Appeal assesses the applicant's diligence case by case and has accepted eight weeks where the product required in-depth analysis.

Can claims be amended in provisional proceedings?

The point remains open. The Milan Local Division held auxiliary requests to amend inadmissible at that stage, which suggests relying on the claims as granted or as maintained.

How much does an application for provisional measures cost at the UPC in 2026?

Since 1 January 2026, the fixed fee is EUR 14,600, plus a value-based fee. Attorney fees must be added, as well as the risk of bearing the other side's representation costs, within the applicable ceilings, if the application fails.

Dhenne Avocats handles applications for provisional measures and their defence before the Unified Patent Court, from the choice of division to costs exposure, including validity risk assessment and budgeting. Talk to us.

This article is an original and substantially updated adaptation of an analysis by Matthieu Dhenne first published on the Kluwer Patent Blog on 17 July 2025: Schrödinger's Patent: The Procedural Uncertainty Effect Before the UPC.