Protective letters in the UPC

Protective letter

At least if the current plan holds, the Unified Patent Court will quite soon be up and running. Businesses express concerns on possible misuse of the UPC’s powerful measures for patent enforcement such as pan-European injunctions and Saisie, i.e., an order to compulsorily preserve evidence on alleged infringers’ premises. Along with these measures, however, the UPC will also provide tools aimed exactly at preventing the misuse of such orders. A so called “protective letter” will be one of the tools to that end. This tool may be unfamiliar to many readers from outside Germany, since it is mainly a German peculiarity and although available in several other European jurisdictions, such as Switzerland, the Netherlands and Belgium, it has limited practical importance there. Now, being introduced by the UPC agreement, the protective letter is expected to gain its influence throughout Europe. This post briefly introduces what a protective letter is, and discusses some special features of a UPC protective letter and some considerations for preparing protective letters. Continue reading “Protective letters in the UPC”

Measures for preserving evidence – different requirements in UK/Germany/France/UPC and their implications

private-no-entry

In some patent infringement cases, relevant evidence lies in the control of the alleged infringer or a third party.  It may be that the patent holder cannot get access to the evidence or that the evidence may be conveniently manipulated before it is disclosed. In these kind of situations, the patent holder can potentially rely on a court to order measures for preserving evidence, which may include compulsorily entering premises, inspecting the allegedly infringing goods or process, making detailed description or even physical seizure of relevant objects or documents. To achieve a surprise effect, the court order should usually be issued ex parte.

Continue reading “Measures for preserving evidence – different requirements in UK/Germany/France/UPC and their implications”