*** v OrthoApnea (CFI, 21 September 2023)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 21 September 2023 (UPC_CFI_329/2023, application 574133/2023), the Brussels Local Division, sitting as a single standing judge (Rule 194.4 RoP), allowed without hearing the defendant the seizure, at a symposium in Knokke-Heist on 22 and 23 September 2023, of OrthoApnea’s NOA devices and the documents accompanying them, on the basis of EP 2 331 036. The application was granted in part: an order to cooperate under penalty was refused for lack of a legal basis. The order, given in Dutch, shows how quickly a seizure can be obtained around a trade event.

Facts and procedure

The applicant, an Antwerp orthodontist whose name is anonymised, is the inventor and proprietor of the patent, which concerns a device for treating night-time breathing problems and is in force in, among others, Belgium, Germany, France, Luxembourg and the Netherlands. Between 2021 and 2023 the parties discussed a licence, the defendant, a Spanish company, disputing infringement and the validity of claim 1. On learning that the defendant would be the main sponsor of the iBEDSSMA symposium and show its products there, the applicant filed its application on 20 September 2023, relying on claims 1, 9 and 10.

The applicable law

The UPC’s international jurisdiction was established, the patent being in force in Belgium with no opt-out registered, and the Brussels Division’s jurisdiction followed from the place of the threatened infringement (Arts. 32(1)(c) and 33(1)(a) UPCA, Rule 192.1 RoP) (paragraph 4.1). The measures fall under Art. 60 UPCA and Rules 192 et seq. RoP, Rule 197.1 RoP allowing a decision without hearing the defendant.

Question

Were the conditions met for an ex parte seizure at a trade event, and could the Court order the defendant to cooperate under penalty?

Decision

Urgency was accepted, since the evidence was likely to leave the territory after the symposium, although the judge noted that the application was late, the applicant having known of the defendant’s attendance since 30 June 2023 (paragraph 4.2). Hearing the defendant might lead to the products being withdrawn, which justified proceeding ex parte, subject to review under Rule 197.3 RoP (paragraph 4.3). The applicant had shown it plausible that he holds a valid patent which the defendant threatens to infringe in Belgium, and refusal would cause irreparable harm through the loss of evidence (paragraph 4.4). The bailiff acts under Belgian law, assisted by an appointed expert, who must file a reasoned report within one week rather than the two months requested, given the timetable of the main action. No confidentiality regime was needed, as only items on public display were to be seized (paragraphs 4.5 and 4.6). For now the report may be used only in the main action, to be brought within 31 calendar days of service. The order to cooperate under penalty was refused for want of a basis (paragraph 4.7). The order is immediately enforceable and costs are reserved to the main action (paragraphs 5.1 to 5.13).

Key points for practice

• A trade fair or symposium in a Contracting Member State may establish the urgency of a seizure, even where the application is filed on the eve of the event.
• The judge may shorten the time for the expert report to fit the timetable of the main action.
• Seizing items on public display makes a confidentiality regime unnecessary. An order to cooperate under penalty was not considered available in this context.
• Practical point: the application should be filed as soon as the product’s presence at an event is known, as the judge will note any delay even where it does not bar the measure.

Provisions applied

Agreement on a Unified Patent Court

Arts. 32(1)(c), 33(1)(a) and 60, the order also refers to an « Art. 72.2 (a) » for the appeal

Rules of Procedure

Rules 192.1, 192.3, 194.4, 196.4, 197.1, 197.3, 198.1, 220.1(c), 224.2 and 317.3

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.