Telefonaktiebolaget LM Ericsson v ASUSTeK Computer (CFI, UPC_CFI_1129/2026, 17 June 2026)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 17 June 2026 (UPC_CFI_1129/2026), the Milan Local Division dismisses Ericsson’s application for provisional measures against ASUSTeK and Arvato Netherlands based on EP 2 727 342 (« Reference Picture Signaling »), while the infringement action on the merits (UPC_CFI_318/2024) and the counterclaim for revocation (UPC_CFI_730/2024) are pending. For lack of urgency, the division does not examine validity or infringement (paragraphs 46 to 48). The order matters in practice: provisional measures may be sought at any stage of the main proceedings, but an applicant that has tolerated the situation for more than a year must show a new and unforeseen circumstance causing serious prejudice.

Facts and procedure

Ericsson first submitted its application on 20 March 2026 within the main proceedings, then filed it separately on 31 March and 1 April 2026 with payment of the fees, which the division holds to be required (paragraphs 12 and 13). It relied on three new circumstances: the length of the main proceedings, two German first-instance judgments of January 2026 against ASUSTeK in favour of Nokia (HEVC) and Wilus (Wi-Fi 6), and the launch of new products. In the alternative, it sought a bank guarantee covering its loss. The defendants disputed urgency and raised, among other things, FRAND, invalidity and non-infringement. The hearing was held on 8 May 2026 by videoconference. The oral hearing on the merits was set for 24 and 25 September 2026.

The applicable law

Provisional measures under Art. 62 UPCA require, besides a sufficient degree of certainty as to validity and infringement, urgency and necessity (Rules 206 and 211 RoP). As the requirements are cumulative, failure on one is enough for dismissal (paragraphs 15, 47 and 48). The division accepts that an application may be made at any stage of the main proceedings, including towards their end, while the measure remains exceptional (paragraph 19). Where the application comes late, the applicant must show new circumstances, arising during the proceedings, that cause serious and unforeseen prejudice. Continued infringement and growing financial loss, which are inherent in litigation, are not enough (paragraphs 21 and 22).

Question

Can a patentee that brought a merits action more than a year earlier obtain provisional measures by relying on the length of the proceedings, national judgments against the defendant in favour of third parties and new product launches?

Decision

No. Ericsson tolerated the conduct for at least sixteen months, the parties having discussed HEVC implementation for years before the main action (paragraph 25). The length of the proceedings results from agreed extensions and the dispute over the confidentiality regime, so it is not a new circumstance (paragraphs 27 to 30). The German judgments, not final and under appeal, concern other patentees and, in one case, another standard. No non-compliance by ASUSTeK or change affecting Ericsson is shown (paragraphs 31 to 35). Annual product launches are routine technology refresh and continue a situation known since at least May 2024 (paragraphs 36 to 38).

The alternative request for security is of doubtful admissibility, as no specific provision of the UPCA or the Rules supports it. In any event, no deterioration in ASUSTeK’s solvency or conduct is shown (paragraphs 39 to 44). The application is dismissed. There is no need to rule on ASUSTeK’s confidentiality request (Rule 262.2 RoP), which will be decided if a member of the public seeks access (paragraph 49). Costs will be determined in the main proceedings.

Key points for practice

• An application for provisional measures during the main proceedings is admissible, but it requires a new and unforeseen circumstance causing serious prejudice (paragraphs 19 to 22).
• Non-final national judgments against the defendant in favour of third parties do not in themselves amount to such a circumstance (paragraphs 31 to 35).
• Security to cover the patentee’s loss requires at least evidence that the defendant’s position has deteriorated (paragraphs 41 to 44).
• Practical point: a SEP holder that opts for the merits route should expect urgency to be hard to invoke later, the application for provisional measures must be filed separately, with payment of the fees (paragraphs 12 and 13).

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

biolitec v Light Guide Optics, Court of Appeal, 24 February 2025, Sinocare v Abbott Diabetes Care, Court of Appeal, 30 March 2026, Dyson v Dreame, Hamburg Local Division, 14 August 2025, other decisions cited by number only, including UPC_CoA_182/2024 (25 September 2024) and UPC_CFI_347/2024 (Düsseldorf Local Division, 31 October 2024)

Related decisions

• Ericsson v ASUSTeK, 17 June 2026, separate order of the same day dismissing the application for provisional measures based on EP 3 076 673 (UPC_CFI_1130/2026).

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.