UPC_CFI_1534/2026; UPC_CFI_1532/2026 – Cilag v Ningbo

Expert Commentary

PI proceedings / urgency Facts 1. This case concerns a preliminary injunction (“PI”) application based on EP 2 349 022 (EP 022) for surgical instruments. 2. An earlier product, the EnDrive Berluga, had been injuncted in 2024 by the Landgericht Munich. 3. In a letter dated 26 March 2025, the German partner of the defendants, Rivolution, was warned by the patentee of the fact that the EnDrive Beluga also infringed further patents among which EP 022. 4. In August 2025, Rivolution stated that in a few months they would get to the market with a product which would not infringe patent EP 022. 5. Rivolution did not provide the claimant with the new product despite several requests. 6. In the end the patentee obtained a product on 6 March 2026 and concluded on 9 April 2026 that the patent was infringed. On 4 May 2026, the patentee started infringement proceedings. 7. The defendants stated that the product was on the market as of 21 November 2025. The Court 1. R. 221.4 RoP makes clear that when the party filing the request waits too long (“unreasonable delay”) it loses its right for a PI. If it qualifies as an unreasonable delay depends on the circumstances of the case. 2. The Court cited the case law of the Court of Appeal and included that the relevant period starts at the time that the party filing the request knew or should have known that the new product infringed. 3. It is for the this party to show that it has acted without unnecessary delay. 4. The Court holds that the party filing the request has not shown that it has acted without undue delay. Comment 1. It is difficult to judge whether the Court’s decision is correct because, at an earlier stage than March 2026, the applicant apparently had already obtained drawings of the new product. However, it is unclear when they were received, partly because certain parts of the decision are redacted. 2. However, the impression is given that the busy Düsseldorf Division was rather strict on urgency in this case, which is of course a way of trying to get some breathing space. 3. I fully understand this attitude, and would even advise the Düsseldorf Division to publicly announce that, if a case can be heard in a less busy Division, a claimant cannot expect a hearing date before June 2028. Without any German claimant or defendant, this case could have easily been brought in a different Division, for instance in Paris or Milan, as these infringing acts also took place there.

Key Holdings

• Under Rule 221.4 RoP, an unreasonable delay in filing an application for provisional measures results in the loss of the right to obtain a preliminary injunction.
• Whether an applicant's delay qualifies as unreasonable depends on the specific circumstances of the case.
• The relevant period for assessing urgency begins at the point in time when the applicant knew or should have known of the infringement.
• The burden of proof lies with the applicant to show that it has acted without unnecessary or undue delay.

Tags

• PI proceedings / urgency
• urgency
• preliminary injunction
• unreasonable delay
• Rule 221.4 RoP

Related Rules

• Rule 2 – Supplementary protection certificate