UPC Court of Appeal: Lapse of Urgency

If a party bases its argument regarding the necessity and urgency exclusively or at least primarily on a single event or time window in which a patent infringement allegedly occurs – such as a trade fair or, as in the present case, a major sporting event – it must accept the inherent risk associated with its procedural strategy that the interest will lapse with the end of the event and the application must be dismissed for lack of urgent interest in the requested measures. If this risk materializes and the party decides to withdraw its application for interim measures before a judicial decision is rendered, the proceedings become moot. If proceedings become moot because the party has withdrawn its main application and has accepted the inherent risk of its procedural strategy that the urgent interest in its application would lapse before a judicial decision is rendered, it is clear that – had the applications not been withdrawn – they would have been dismissed for lack of urgent interest. This party is therefore considered the unsuccessful party and must bear the costs of the proceedings in accordance with the general rule of Article 69(1) UPCA. If, on the other hand, a party has withdrawn its application due to a lack of urgent interest before a (final) judicial decision was issued, and this withdrawal was based on circumstances that it could not reasonably have foreseen – and not on the realization of a foreseeable risk associated with a deliberate procedural strategy – then equity may require a different cost decision (UPC 12. 5. 2025, CoA 382/2024).