TELEFONAKTIEBOLAGET LM ERICSSON v ASUSTEK COMPUTER (CFI, 17 June 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 17 June 2026 (UPC_CFI_1130/2026), the Milan Local Division dismissed for lack of urgency Ericsson’s application for provisional measures against ASUSTeK Computer and Arvato Netherlands based on EP 3 076 673, which concerns decoding and encoding pictures of a video sequence, while the main action, brought in June 2024, was due to be heard in September 2026. The order clarifies when provisional measures may be sought during pending merits proceedings: the applicant must show new circumstances that objectively worsen its position and make waiting unreasonable, and increased financial loss is not enough.

Facts and procedure

Ericsson brought the infringement action on 14 June 2024 (UPC_CFI_319/2024), to which ASUSTeK responded with a counterclaim for revocation (UPC_CFI_728/2024). Its application for provisional measures, first lodged as a procedural application on 20 March 2026, was refiled separately on 1 April 2026 on the division’s instructions. The defendants filed an objection on 27 April 2026 and the hearing took place on 8 May 2026, the merits hearing was set for 24 and 25 September 2026. Ericsson sought an injunction or, in the alternative, a bank guarantee securing damages. The panel was presided over by Pierluigi Perrotti, as judge-rapporteur, sitting with Alima Zana, Rute Lopes and a technically qualified judge.

The applicable law

Provisional measures are governed by Art. 62 UPCA and Rules 206 to 211 RoP. The division restated four cumulative conditions: entitlement, validity and infringement, urgency and the balance of interests, failure on any one being fatal, validity is assessed prima facie, with the burden of proving invalidity on the defendant in inter partes proceedings (paragraphs 13 to 15).

Question

Does an application for provisional measures made almost two years after the main action was brought, a few months before the merits hearing, satisfy the urgency requirement?

Decision

Such an application remains possible during the main proceedings but must be exceptional. Where the merits are close to conclusion, the applicant must show new circumstances that objectively worsen its position, and greater financial loss is insufficient (paragraphs 16 to 23). Ericsson had tolerated the conduct for at least sixteen months (paragraph 25). The length of the main proceedings, due to agreed extensions and the confidentiality dispute decided by the Court of Appeal, was not a new circumstance (paragraphs 26 to 30). Non-final judgments of the Munich Regional Court obtained by other patentees could not be transposed (paragraphs 31 to 35), and annual product launches were a routine technology refresh (paragraphs 36 to 38). The request for security also failed, as there was no evidence of a deterioration in ASUSTeK’s solvency or of an intent to evade (paragraphs 39 to 45). The application was dismissed for lack of urgency, without any assessment of validity, infringement, the FRAND defence or the balance of interests (paragraphs 46 to 48), costs were left to the main proceedings.

Key points for practice

• An application for provisional measures during pending merits proceedings requires proof of new circumstances objectively worsening the applicant’s position (paragraphs 16 to 23).
• National judgments obtained by other patentees against the same defendant do not by themselves establish urgency (paragraphs 31 to 35).
• Security under Art. 62(3) UPCA requires concrete evidence as to the defendant’s solvency or risk of evasion (paragraphs 42 to 44).
• Practical point: a patentee seeking provisional measures should apply early, as the length of the main proceedings does not in itself justify a late application.

Provisions applied

Agreement on a Unified Patent Court

Arts 60, 62 and 73(2)(a)

Rules of Procedure

Rules 206, 209, 211, 220.1(c), 224.2(b) and 262.2

Case law cited

Sinocare v Abbott Diabetes Care, Court of Appeal, 30 March 2026, Biolitec v Light Guide Optics Germany, Court of Appeal, 24 February 2025, Dyson v Dreame International, Hamburg Local Division, 14 August 2025

Related decisions

• Telefonaktiebolaget LM Ericsson v ASUSTeK Computer, 26 January 2026, Court of Appeal decision on confidentiality in the main 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.