Protective letter

The protective letter is a pre-emptive brief that a party fearing it may be targeted by an application for provisional measures (such as an injunction or an ex parte evidence preservation order) files in advance with the UPC, in order to set out its arguments (in particular non-infringement or invalidity of the patent) in case such an application is actually made against it. Its basis lies in Rule 207 of the UPC Rules of Procedure (Protective letter). The filer indicates the potential parties, the patent concerned and the facts and legal arguments by which it contests in advance the merits of a possible application for provisional measures. The letter is entered in a specific register kept by the Registry and is communicated to the applicant only if, and when, the applicant actually applies to the Court for provisional measures against the author of the letter. Its procedural function is to ensure respect for the adversarial principle where the element of surprise threatens it: where a protective letter has been filed, the Court takes it into account when deciding, in particular, whether to rule without summoning the defendant (Rules 209 and 212 of the Rules of Procedure). It thus reduces the likelihood that a measure will be granted on the patent proprietor's presentation alone. The protective letter is valid for six months. After that period, it is deemed withdrawn, unless renewed upon payment of a further fee.

Protective letter: key points

The protective letter is the instrument of the defendant that anticipates. Before the Unified Patent Court, it takes the form of the protective letter under Rule 207, valid for six months and renewable. In Germany, the Schutzschrift is filed with a central register. By contrast, French law has no protective letter, the defendant challenging the order through an application to retract it. A company exposed to a contested launch must therefore choose the right instrument according to the jurisdiction. See our page UPC attorney and the website of the Unified Patent Court.