Rule 209 – Examination of the Application for provisional measures

1. Without prejudice to the Court’s decision on the Application for provisional measures, the Court shall have the discretion – including where the Application is made pursuant to Rule 206.3 – to: (a) inform the defendant about the Application and invite him to lodge, within a time period to be specified, an Objection to the Application for provisional measures which shall contain: (i) the reasons why the Application shall fail; (ii) the facts and evidence relied on, in particular any challenge to the facts and evidence relied on by the applicant; and (iii) where main proceedings on the merits of the case have not yet been started before the Court, the reasons why the action which will be started before the Court shall fail and the facts and evidence relied on in support; (b) summon the parties to an oral hearing; (c) summon the applicant to an oral hearing without the presence of the defendant. 2. In exercising its discretion pursuant to paragraph 1, the Court shall in particular take into account: (a) whether the patent has been upheld in an opposition procedure before the European Patent Office or has been the subject of proceedings in any other court; (b) the urgency of the action; (c) whether the applicant has requested provisional measures without hearing the defendant and whether the reasons for not hearing the defendant appear well-founded; and (d) any Protective letter filed by the defendant; the Court shall in particular consider summoning parties to an oral hearing if a relevant Protective letter has been filed by the defendant. 3. In cases of extreme urgency the standing judge appointed in accordance with Rule 345.5 may decide immediately on the Application for provisional measures and the procedure to be followed on the Application. 4. If the applicant has applied for provisional measures without hearing the defendant and the Court decides not to grant provisional measures without hearing the defendant the applicant may withdraw the Application and may request that the Court order that the Application and the contents of the Application remain confidential. 5. If the patent the subject of the Application is also the subject of a protective letter pursuant to Rule 207 the applicant may withdraw the Application pursuant to paragraph 4.