Is it necessary to demonstrate that an applicant will suffer irreparable harm for an applicant to obtain a preliminary injunction (PI) in the UPC?
The Rules of Procedure of the UPC (Rule 211.3) contains the requirement that the court shall weigh up the interests of the parties when deciding whether to award a PI inter partes, and “in particular, take into account the potential harm for either of the parties resulting from the granting or the refusal of the injunction” (emphasis added).
In the early and now well-known PI case, 10x Genomics (UPC_CFI_2/2023), the Local Division Munich stated that as well the mere finding (assessed in a mini-trial) that there is more likely than not a (threatened) patent infringement of a valid patent, which is a prerequisite for a PI, this is not sufficient for ordering provisional measures on its own. Instead, the Court states that there must be necessity in the factual circumstances for granting a PI that is also to be taken into account, such as that the applicant has acted urgently and the possible damage that the applicant may suffer.
The words of the Rule have, however, left some doubt as to when and to what extent irreparable harm to the applicant (or the defendant) is relevant to the order of a PI.
The Court of Appeal (led by Judge Rian Kalden) in Ortovox v Mammut (UPC_CoA_182/2024) has now cleared this up to some extent. The Court states that irreparable harm is not a necessary condition for the ordering of interim measures. The Court states that Rule 211.3 merely refers to possible damage in the sense that it must be taken into account when weighing up interests if it would occur. In other words, lack of irreparable harm does not necessarily prevent a PI. Even ex parte PIs, the Court adds, do not necessarily require irreparable damage – the court can order interim measures (Rule 212.1) without first hearing the defendant "in particular" if a delay would probably cause irreparable damage to the applicant.
This leaves the question of what relevance irreparable harm to the respondent would have (see, for example, the English case Cloud Cycle Ltd v Verifi LLC and another [2024] EWHC 233), and whether third-party damage has a role to play. The Court of Appeal in Ortovox expressly left the latter question open for another day.
The Ortovox ruling confirms, if it needed confirming, that the approach to PIs in the UPC is very different to the balance of convenience dominated approach in the UK, and much closer, for example, to the German and Dutch courts.
