UPC Local Division: Examination of Validity in Provisional Proceedings

In proceedings for the issuance of provisional measures, it is not feasible to conduct a full examination of all arguments put forward against the validity of the patent in suit, which—like in revocation proceedings—can be numerous. Instead, the number of arguments directed against the validity of the patent in suit is generally limited to the three strongest arguments from the respondent’s perspective. The reasoning behind this is that while a summary assessment of factual issues is conceivable, there can be no partial or summary examination of legal questions. The Court may either examine a legal question or not; if it chooses to do so, it must examine it comprehensively. The only way to account for the summary nature of such proceedings is to reduce the number of legal questions to be fully examined accordingly. This requirement is underscored by the need to limit the arguments to three. Since the respondent bears the burden of challenging the presumption of validity, it is primarily up to the respondent to select the three arguments that will be examined in detail by the deciding panel in the expedited proceedings (Local Division Munich, 27 August 2024, Court of First Instance 74/2024).