Nanoval v ALD Vacuum Technologies (CFI, 28 May 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 28 May 2025, following an oral hearing on 9 May 2025, the Munich Local Division rejected ALD Vacuum Technologies’ request for review of the order for preservation of evidence and inspection made on 3 February 2025, without hearing ALD, at Nanoval’s request under EP 3 083 107 (UPC_CFI_63/2025). The original order was confirmed and ALD was ordered to bear the costs of the review.

The order defines the role of the reviewing court: it checks whether the measures were rightly ordered, without retrying infringement, and the risk of destruction of evidence need not be shown where the measure rests on another ground. It also sheds light on the use of protective letters.

Facts and procedure

Nanoval sought preservation of evidence and inspection under Rules 192 et seq. On 3 February 2025, the division ordered the measures without first hearing ALD. On 21 March 2025, ALD applied for review, seeking revocation of the order, confidentiality undertakings from named persons, including a patent attorney, and costs. Nanoval opposed on 17 April 2025. The hearing of 9 May 2025 was audio recorded. The dispute concerns nozzles and the grain size of the powder obtained. The EIGA-Standard and EIGA-Premium installations are in issue.

The applicable law

Art. 60(5) UPCA allows measures to be ordered without hearing the other party where any delay is likely to cause irreparable harm to the proprietor or where there is a demonstrable risk of evidence being destroyed. The party concerned may request a review under Art. 60(6) and Rule 197.3, the court may then modify, revoke or confirm the measures (Rule 197.4).

Question

Should the order of 3 February 2025, made without hearing ALD, have been revoked in light of ALD’s technical objections, its protective letters and the absence of any risk of destruction of evidence?

Decision

The division first rejected the technical objections. It had not relied on specific grain sizes, the patent not excluding grains above 50 µm, and ALD’s own submissions in the EPO opposition describe Laval nozzles as producing finer powder (section I.1). It had not assumed that the EIGA-Premium uses the EIGA-Standard nozzle unchanged (section I.2). ALD’s own patent on a new nozzle is irrelevant, since an invention may build on an earlier one while being patentable (section I.4), and a request for a cross-licence does not rule out infringement (section I.5). The protective letters did not clearly identify the installations concerned, and the division declined to reconstruct their meaning from other proceedings. Questions on individual features are for the main action (section I.3).

Secondly, a review is limited to whether the measures were rightly ordered, so the risk of destruction of evidence is irrelevant (section II.1). The division had not treated the filing of protective letters as a lack of cooperation. It inferred that lack from the deliberate omission of the EIGA-Premium installation in those letters. A prior hearing was not required, ALD having had several opportunities to respond (section II.2). The request for review was rejected and the order confirmed.

Key points for practice

• The reviewing court checks whether the original order was properly made. Questions on the realisation of features are left to the main action.
• A protective letter must identify the installations or products concerned precisely: a vague letter does not prevent a measure being ordered without a hearing.
• The defendant’s own patent or a request for a cross-licence is not enough to defeat the likelihood of infringement.
• Practical point: deliberately leaving an installation out of a protective letter may be treated as a lack of cooperation and justify a measure ordered without a hearing.

Provisions applied

Agreement on a Unified Patent Court

Art. 60(5) and (6)

Rules of Procedure

Rules 192 et seq., 197.3 and 197.4

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.