Telefonaktiebolaget LM Ericsson v ASUSTeK Computer (CFI, UPC_CFI_1130/2026, 17 June 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 17 June 2026 (UPC_CFI_1130/2026), a four-judge panel of the Milan Local Division dismissed for lack of urgency the application for provisional measures by Telefonaktiebolaget LM Ericsson against ASUSTeK Computer Inc. and Arvato Netherlands B.V., based on EP 3 076 673 B1, said to be essential to the HEVC/H.265 standard. The application was filed almost two years after the merits action began, once the written procedure had closed and the hearing had been scheduled. The point is clear: where merits proceedings are well advanced, the applicant must show new circumstances making it impossible to await the decision on the merits, the mere continuation of the acts complained of, the length of the proceedings, German judgments obtained by other patentees or the launch of new products are not enough.

Facts and procedure

The infringement action (UPC_CFI_319/2024) was filed on 14 June 2024 and met with a counterclaim for revocation (UPC_CFI_728/2024), the written procedure closed on 27 November 2025 and the hearing was set for 24 and 25 September 2026, after a dispute over external-eyes-only access decided by the Court of Appeal on 26 January 2026 (paragraph 28). The defendants raise a FRAND defence. Ericsson lodged its application within the merits file on 20 March 2026, then separately on 1 April 2026, the Division requiring a separate filing and fee (paragraph 12). It sought an injunction for the duration of the proceedings, with penalty payments, and in the alternative a bank guarantee. The hearing took place on 8 May 2026.

The applicable law

Provisional measures are governed by Art. 62 UPCA and Rules 206 et seq. RoP. The applicant must establish entitlement, validity and infringement with sufficient certainty (at least more likely than not), urgency and the balance of interests. The conditions are cumulative, and failure on one is enough (paragraphs 13 to 15). An application may be made at any stage of the merits proceedings, but the measure remains exceptional (paragraph 19).

Question

Can the holder of a standard essential patent obtain a provisional injunction when the merits proceedings are advanced and the hearing scheduled, relying on the length of the proceedings, national judgments obtained by other patentees and the defendant’s new products?

Decision

In that situation, urgency and the balance of interests take on a stricter meaning (paragraph 17): the applicant must prove that it cannot await the decision on the merits and cannot simply rely on the continuation of the conduct or on growing financial loss (paragraph 22). Ericsson had tolerated the situation for at least 16 months, and the HEVC implementation discussions predated the action (paragraph 25). The delays were due to the external-eyes-only dispute and to agreed extensions, and the scheduling of the hearing was not a new circumstance (paragraphs 27 to 30). The Munich Regional Court judgments obtained by Nokia and Wilus, under appeal, rest on conduct specific to those disputes and cannot be transposed (paragraphs 31 to 35). The new products were a routine technology refresh, continuing a situation known since at least May 2024 (paragraphs 36 to 38). The alternative request for security was of doubtful admissibility and not supported by any risk of insolvency (paragraphs 39 to 44). The application was dismissed for lack of urgency (paragraph 46), without examining the other conditions (paragraphs 47 and 48), there was no need to rule on ASUSTeK’s confidentiality request (paragraph 49). Costs were left to the merits proceedings, and an appeal lies within fifteen days of service.

Key points for practice

• An application for provisional measures made late in the merits proceedings requires new and pressing circumstances, distinct from the continuation of the alleged infringement.
• National judgments obtained by other patentees against the same defendant do not establish urgency.
• Sixteen months of tolerance and agreed procedural delays weigh against urgency.
• Practical point: in SEP litigation, the decision to seek a provisional injunction belongs at the start of the proceedings, later on, the patentee must document a concrete change of circumstances.

Provisions applied

Agreement on a Unified Patent Court

Arts. 60(7), 62(1) to (4), 69(4) and 73(2)(a)

Rules of Procedure

Rules 206.1, 206.5, 209, 211, 220.1(c), 224.2(b), 262.2 and 262A

Case law cited

Ericsson v ASUSTeK, Lisbon Local Division, 15 October 2024, Yealink v Barco, Brussels Local Division, 21 March 2025, Court of Appeal, 14 February 2024, UPC_CoA_382/2024, Biolitec v Light Guide Optics Germany, Court of Appeal, 24 February 2025, Dyson v Dreame, Hamburg Local Division, 14 August 2025, Düsseldorf Local Division, 31 October 2024, UPC_CFI_347/2024, Court of Appeal, 25 September 2024, UPC_CoA_182/2024, Sinocare v Abbott Diabetes Care, Court of Appeal, 30 March 2026, Ericsson v ASUSTeK, Court of Appeal, 26 January 2026

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.