Hybridgenerator v HGSystem (CFI, 19 December 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 19 December 2024 (UPC_CFI_492/2024), given in Danish, the single judge of the Copenhagen Local Division confirmed on review the ex parte order of 26 August 2024 that had allowed Hybridgenerator to preserve evidence at the premises of HGSystem and four other defendants under EP 4 238 202 (mobile hybrid generator). The IT expert’s report was released to the parties’ representatives, subject to confidentiality.

Facts and procedure

Hybridgenerator, proprietor of EP 4 238 202 granted on 14 August 2024, obtained on 26 August 2024 an ex parte order to preserve evidence against HGSystem, two holding companies, Infotech Concept and an individual who was a former associate. It was executed on 30 August 2024 by the Svendborg enforcement court. On 30 September 2024 the defendants requested a review of the order (Rule 197.3 RoP), difficulties over passwords delayed the IT expert’s report.

The defendants argued that the patent lacked novelty over two earlier applications and Hybridgenerator’s own products, and inventive step, that their MPU generators did not reproduce claim 1 because the engine fed the inverter through a common DC bus, that the applicant had breached its duty of candour (Rule 192.3 RoP) and that the measure was disproportionate as regards the holding companies and the individual. The oral hearing took place on 28 November 2024 (Rule 197.4 RoP).

The applicable law

Article 60(1) UPCA allows measures to preserve evidence, even before proceedings on the merits, where the applicant has presented reasonably available evidence to support the claim of infringement, subject to the protection of confidential information. Article 60(6) UPCA and Rule 197.4 RoP govern review at the defendant’s request, which may lead to the measures being modified, revoked or confirmed.

According to the judge the standard of proof is relatively lenient: neither full proof nor a showing of high probability is required, since the very purpose of the measure is to establish whether infringement has occurred and its extent. The measure must nonetheless comply with the proportionality requirement of Article 42 UPCA.

Question

Can the defendant obtain revocation of an order to preserve evidence by challenging validity and describing a non-infringing operation of its products, and could the order extend to related companies and an individual?

Decision

On validity, the three documents relied on had been examined by the EPO during grant and no opposition was pending. There is therefore a clear presumption that the patent as granted is valid, which the material produced in these preliminary proceedings does not displace.

On infringement, Hybridgenerator accepted that if the products worked with a bus feeding the inverter directly there would be no infringement, so it had not proved infringement. However, despite the witness statements filed and in light of the unusual course of the seizure described by the enforcement court, the judge could not rule out the products having been altered after the proceedings began. Given the lenient standard of Article 60(1) UPCA, the evidence remained sufficient.

As to the defendants covered, Infotech Concept was the registrant of the domain name and social media posts showed close intermingling of those concerned, so the applicant could not know in advance which of them held the evidence. Including them was not disproportionate, even though the holding companies were not sued on the merits. The order was confirmed, the report may be used only in the action on the merits and costs were reserved to that action. An appeal lies within fifteen days (Article 73 UPCA and Rule 220 RoP).

Key points for practice

• Where the prior art relied on was examined by the EPO and no opposition is pending, validity can rarely be challenged effectively at the stage of reviewing an order to preserve evidence.
• A non-infringing description of the product, even supported by witness statements, does not suffice to revoke the order if the judge cannot exclude alterations made after the proceedings began.
• The order may cover related companies and a manager where their intermingling prevents the applicant from knowing who holds the evidence.
• Practical point: a defendant seeking review should file objective, dated evidence of the design of its products, failing that, the expert’s report is released to the parties’ representatives.

Provisions applied

Agreement on a Unified Patent Court

Arts 42, 60(1) and (6) and 73

Rules of Procedure

Rules 192.3, 194.3, 196, 197.3, 197.4 and 220

European Patent Convention

Arts 52, 54 and 56

Related decisions

• Hybridgenerator v HGSystem, 26 August 2024, ex parte order to preserve evidence.
• Hybridgenerator v HGSystem, Court of Appeal, 8 May 2025, order on the language of the appeal proceedings.

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.