UPC Court of Appeal clarifies standards for ex parte seizures versus preliminary injunctions (PC_CoA_002/2025 and APL_16749/2025, UPC_CoA_327/2025)
Published on 19th December 2025
The UPC Court of Appeal (CoA) has upheld the Paris Local Division’s simultaneous ex parte orders to preserve evidence and inspect premises against an operator (Valinea, PC_CoA_002/2025) and the manufacturer (Maguin; APL_16749/2025, UPC_CoA_327/2025) of a waste‑incineration furnace and set out its first substantive guidance on ex parte seizures, so called saisies.
The CoA explains that materially different considerations apply to saisies than to preliminary injunctions (PIs): urgency is about the narrow window to preserve evidence; the risk threshold is probability, not certainty; and patent validity is not ordinarily assessed at the saisie stage. Those principles flow from Art. 60 UPCA, Rules 192-199 RoP and Directive 2004/48/EC and shape the court’s discretion on whether to proceed ex parte, i.e. to proceed without first hearing the defendant.
The measures to preserve evidence and inspect premises ordered at first instance
TIRU is the proprietor of EP 3 178 578 protecting a Waste Incineration Plant and Process and applied for ex parte saisies and inspections against Valinea and Maguin on December 17th 2024. A respective order of the Paris Local Division was granted on December 23rd 2024. Execution followed on January 14th 2025 while the furnace was due to be put into service in the first quarter of 2025: initial testing was scheduled for January 15th 2025. After the Local Division dismissed Valinea’s and Maguin’s revocation/review requests pursuant to Rules 197.3 and 197.4 RoP in March 2025, both appealed, arguing lack of urgency, no risk of disappearance or unavailability of evidence, and a lack of candour for failure to disclose alleged prior art. The Court of Appeal admitted but rejected the appeal.
Legal framework and structured discretion
Art. 60(1) and (5) UPCA and Rules 192-199 RoP permit “prompt and effective” evidence‑preservation measures, if necessary ex parte, particularly where (i) delay risks irreparable harm or (ii) there is a demonstrable risk of evidence being destroyed; the court decides whether to hear the defendant or proceed ex parte, weighing urgency (R. 194.2(a)), the reasons not to hear the defendant (R. 192.3, R. 197), and the probability of evidence ceasing to be available (R. 194.2(c), R. 197.1). These principles are read in accordance with the principle of proportionality, efficiency, and the Directive 2004/48/EC, Art. 7.
On framework and discretion, the Court restates that evidence‑preservation measures may be ordered – in accordance with Art. 60(1) and (5) UPCA and Rules 192-199 RoP – “prompt and effective” even before proceedings on the merits, and, if necessary, without hearing the defendant, particularly where a delay risks irreparable harm or there is a demonstrable risk of evidence being destroyed. When examining a saisie application, the court decides whether, and to what extent, to hear the defendant by considering three specific factors:
- the urgency of the action;
- whether the reasons for not hearing the defendant appear well‑founded; and
- the probability that evidence may be destroyed or otherwise cease to be available
These factors must be applied in line with the principle of proportionality and efficiency, and read in accordance with Article 7 of Directive 2004/48/EC.
Urgency for saisies: window to secure evidence, not “delay”
Necessity is assessed at the time of the order. In the present case, a tight operational window before heat‑up/testing meant interior inspection would become impracticable absent a multi‑day shutdown or waiting for maintenance, justifying ex parte measures.
With the application triggered by a YouTube video from October 2024 showing features of the furnace and a planned first‑quarter 2025 start‑up, the two‑month preparation period until TIRU’s filing in December did not undermine urgency; it was “necessary in light of the circumstances”.
The Court expressly distinguishes this from PI applications: for PIs the court shall have regard to any unreasonable delay (Rule 211.4 RoP). However, for an application for preserving evidence no such requirement exists in the UPCA or the Rules of Procedure.
Risk of evidence loss: probability, not certainty
The Court reiterates that the relevant standard is the probability (Rule 194.2(c) RoP) or the demonstrable risk (Rule 197.1 RoP) that evidence will be destroyed or otherwise cease to be available. That standard applied both to physical access to the furnace – interior inspection would have become “extremely difficult” once the furnace starts up – and to technical documentation, including in digital form. The Local Division did not exceed its discretion in ordering simultaneous execution at Valinea’s and Maguin’s premises to ensure effectiveness and avoid the risk that documentation could be lost or removed; nor did assertions about public‑service concession documentation obligations suffice to exclude that risk.
Duty of candour: scope and limits
On the applicant’s duty of candour and patent validity, the Court of Appeal draws a clear line between applications for preserving evidence and applications for PIs. An ex parte applicant must disclose any material fact known to it that might influence the decision to proceed without hearing the defendant – in accordance with the same three criteria the court must consider: urgency, reasons not to hear the defendant, and the probability of loss. Unlike preliminary injunctions, for which the Court must be satisfied (with a sufficient degree of certainty) that the patent is valid, no such criterion is required for the Court’s discretion to order measures to preserve evidence. Assessing validity remains exclusively within the competence of the judge ruling on the merits or on preliminary injunctions. Only where the presumption of validity can clearly be called into question - for example, following an EPO Opposition Division or Board of Appeal decision, or a parallel (national) revocation decision - that might affect the applications for preserving evidence.
Comment
The result is straightforward: In the field of provisional measures, measures to preserve evidence (Saisies) and PIs are different tools with different legal standards – now with a clear line drawn between them by the CoA.
For saisies, the court’s lens is trained on preserving evidence efficiently and proportionately against a “real‑world” operational backdrop: urgency is about the narrow opportunity to capture evidence, and risk is judged by probability. Strategically, applications for preserving evidence should be treated as fact‑driven, ex parte evidence‑securing missions while PI applications should be designed separately for higher requirements on infringement and validity. What convinces for a saisie will not necessarily carry a PI - and vice versa.
Even though the order to preserve evidence provided by the UPC Agreement has some similarities with the French saisie-contrefaçon, the UPC’s staged approach – separating evidence preservation from injunctive relief – will conceptually feel familiar for German practitioners too, but the entry requirements differ. German courts typically demand higher (concrete) evidence in order to obtain an order for the preservation of evidence. Regarding the validity assessment in PI proceedings the standards in both jurisdictions remain equally high. By contrast, the UPC sets a slightly lower bar to secure evidence.
Applicants must build a tight “window of unavailability” narrative and explain why evidence will imminently become inaccessible. Validity debates shall not be front‑loaded unless there is a clear, objective reason that plainly shakes the presumption.
On the other side, defendants should present concrete, checkable mechanisms that ensure that evidence remains available despite notice - concession‑based generalities are (too) weak. Clear validity signals can be brought to the surface early: if EPO opposition decisions or parallel (national) revocation decisions exist, they may affect the ex parte reasoning.
Many thanks to Jan-Willem Prügel for his contribution to the creation of this insight.
