Cilag GmbH International v RiVOLUTiON (CFI, 29 August 2025)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By an order of 29 August 2025 (UPC_CFI_374/2025, ORD_32992/2025), the Hague Local Division dismissed the application for provisional measures brought by Cilag GmbH International and Ethicon against RiVOLUTiON on the unitary patent EP 3 689 262 for surgical staple cartridges. The dismissal rests solely on the applicants’ unreasonable delay: the Division did not rule on validity or infringement. Cilag must pay EUR 80,000 as an interim award of costs.

The order states plainly that urgency runs from the time the patentee had the necessary information, and that a belated formal analysis or the holiday season does not justify several months of inaction.

Facts and procedure

The applicants targeted David Medical’s EnDrive Beluga cartridges and Bluesail’s ESI EndoFlex Gen III cartridges, distributed by RiVOLUTiON (paragraphs 4 to 8). On 7 November 2024 Cilag learnt of a RiVOLUTiON bariatric study using the David Medical cartridges. A few days later it obtained an ex parte order in Germany on the parent patent EP 2 621 360, enforced on 12 November 2024 (paragraphs 42 and 43). It wrote to RiVOLUTiON only on 6 February 2025, asserted EP 3 689 262 in March and applied to the Division on 29 April 2025 (paragraphs 44 and 45). The oral hearing took place on 14 July 2025.

The applicable law

Provisional measures are governed by Art. 62 UPCA and Rules 206 and 211. The applicant must show, more likely than not, entitlement to sue, validity and infringement (paragraph 33). Under Rule 211.4, delay runs from when the applicant knew or should have known what was reasonably necessary to apply with a reasonable prospect of success. A patentee who delays may not jump the queue (paragraphs 36 to 40). The Division’s jurisdiction rests on Art. 7(2) of Regulation No 1215/2012 and Art. 33(1)(a) UPCA.

Question

Can a patentee who waits almost three months before taking any step, and almost six months in all before applying to the UPC, still obtain provisional measures, and can new facts revive urgency?

Decision

No. Jurisdiction was accepted on the basis of a threat of infringement aimed at the Netherlands (an English-language website without territorial restriction, workshops in the Netherlands, Belgium and Portugal). The Division doubted that every division is competent for a unitary patent irrespective of Art. 33(1) UPCA, without deciding the point (paragraphs 28 to 31). Cilag, the registered proprietor, has standing under Rule 8.4, Ethicon, the assignor, no longer does and its application is dismissed (paragraphs 32 to 35). Cilag should have been ready to apply by 11 November 2024 (paragraph 46). The formal infringement analysis relied on does not justify the delay, since the cartridges had already been analysed in the German proceedings and claim 1 is very similar to that of the parent patent. The holiday season is no excuse (paragraphs 47 to 49). Stockpiling was not proven and the extension of the study, a tender outcome and a supplier listing were known, foreseeable or insufficiently substantiated (paragraphs 50 to 55). Lacking temporal urgency, the Division did not examine the other requirements (paragraph 56). Evidence filed after the hearing was not admitted (paragraph 58) and the confidentiality order was confirmed (paragraphs 59 and 60).

Key points for practice

• The starting point for urgency may be fixed by reference to national proceedings on a closely related parent patent.
• A test batch that was returned does not prove stockpiling capable of reviving urgency.
• The Division voiced doubt, without deciding it, as to whether every local division is competent for a unitary patent.
• Practical point: once it has sufficient information, a patentee should move without delay from warning letter to UPC application, including where it is already acting before a national court.

Provisions applied

Agreement on a Unified Patent Court

Arts 33(1)(a), 47, 62(4), 73(2)(a) and 82

Statute of the Court

Art. 37(2)

Rules of Procedure

Rules 8.4, 8.5(c), 9, 118.8, 158.2, 206.2, 211, 220.1(c), 224.1(b), 262A, 354 and 355.4

Directive 2004/48/EC

Art. 9(3)

Regulation (EU) No 1215/2012

Art. 7(2)

Case law cited

NanoString v 10x Genomics, Court of Appeal, 26 February 2024, Mammut v Ortovox, Court of Appeal, 25 September 2024 (UPC_CoA_182/2024), Boehringer Ingelheim v Zentiva, Court of Appeal, 13 August 2025, Munich Local Division, 21 May 2024 (UPC_CFI_443/2023), Munich Local Division, 27 August 2024 (UPC_CFI_201/2024)

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.