Two New Papers on Preliminary Injunctions in the UPC

1.  In September and October 2023, the Munich Local Division of the UPC decided two applications for preliminary injunctions, both filed by 10x Genomics, Inc. and the President and Fellows of Harvard College against NanoString Technologies Inc., NanoString Technologies Germany GmbH, and NanoString Technologies Netherlands B.V.  The decision in the first case, UPC CFI 2/2023, is available on the UPC’s website in the original German and in English.  I have previously noted other commentary on the first decision, which resulted in the granting of a preliminary injunction, here; the second decision, which denied the request for preliminary relief, has been noted here.

Matthias Leistner has now published an article titled Einstweilige Unterlassungsverfügung des EPG wegen patentverletzung:  Die Lokalkammer München bohrt dicke Bretter (“Preliminary Injunctions in the UPC against Patent Infringement:  The Munich Local Division Tackles Some Hard Problems”), GRUR 22/2023, 1578-86.  (The idiom “bohrt dicke Bretter” literally means “drills thick boards.”)  Here is the abstract, in my translation from the German:

The first decision on the merits of the Munich Local Division of the UPC touches on numerous essential procedural and substantive questions:  the wording of the request and its relationship with the patent claims and the inquiry into validity; orders concerning validity in expedited proceedings and relatedly the burdens of pleading and proof; the need for legal protection and urgency; objections and proportionality—just to state the most important.  The Local Division is off to a good start.  In the following, the decision is analyzed for purposes of practice and discussed.

Dr. Leistner compares the decision to Hermione’s handbag in Harry Potter, in terms of the number of things that the court fit into one package.  More seriously, Dr. Leistner approves of the court's adoption of the "preponderant likelihood" (überwiegende Wahrscheinlichkeit) test for evaluating validity, as opposed to something more stringent, in view of the fact (also noted by the commentator below) that the UPC can call upon the expertise of technically qualified judges--though he also notes that in addition the UPC (correctly) considers the probability of infringement and validity as having some relevance to the overall balancing of the interests of the parties.  He also expresses concern that, if the defendant is excluded from the market on the basis of a patent that is subsequently invalidated and, under the CJEU's decision in Bayer v. Richter, is denied compensation ex post, the defendant's harm may turn out to be (unnecessarily) irreparable.  (It is to be hoped that the CJEU's somewhat surprising partial about-face in Mylan v. Gilead (see here) may help to alleviate this concern.)  Finally, the author argues that, although the court rejected the defendant's arguments that granting the preliminary injunction would be disproportionate, the fact that it gave careful consideration to those arguments may mean that in other (albeit uncommon) cases, on other specific facts, the facts that the accused product is a "complex" product or that the plaintiff is an NPE, could be relevant.    

2. Tilmann Müller-Stoy has published an article titled Prüfungsmaßstab für den Rechtsbestand bei einstweiligen Anordnungen vor dem Einheitlichen Patentgericht, (“Standards for Evaluating Validity in regard to Provisional Orders before the UPC”), Mitteilungen der deutschen Patentanwälte 11/2023, 486-89.  Here is the abstract, again in my translation:

The UPC finally commenced operations on June 1, 2023.  Among the first proceedings lodged were related motions requesting provisional measures.  This raises the practically significant question of what legal standard the UPC should adopt for evaluating validity in connection with motions for preliminary relief.  Above all, a new system for resolving patent disputes needs standards that are as clear and understandable as possible.  An overly flexible, necessarily vague standard undermines predictability and does not adequately conform to these requirements.  In consideration of the text of the provisions the UPC is to apply and especially in view of the fact, that aside from legally qualified judges technically qualified judges have been appointed, it should be decisive whether, after rigorous examination, validity is more probable than invalidity.  Remaining doubts can be taken into account relative to their weight and in combination with whatever other factors inform judicial discretion of how to balance the relevant interests. Thus are  justice and reasonableness served in the individual case.