In its order in UPC_CFI_374/2025, Local Division The Hague, 29 August 2025 (Cilag/Ethicon v RiVOLUTiON), the Court dismissed an application for provisional measures primarily on lack of temporal urgency under Rule 211.4 Rules of Procedure (RoP). The order is a detailed illustration of how the UPC assesses “unreasonable delay” in preliminary injunction (PI) practice and how it links that assessment to a claimants’s preparation steps.
Background
The proceedings concerned unitary patent EP 3 689 262, directed to a staple cartridge for medical stapling devices. The defendant Rivolution, a German distributor, marketed allegedly infringing stapling products on its website and through commercial activity. The claimants Cilag and Ethicon sought injunctive relief covering UPC Contracting Member States.
Key findings of the decision
Jurisdiction and competence (Article 33(1)(a) UPCA; Article 7(2) Brussels Regulation)
The Court accepted competence of the Hague Local Division on the basis that the alleged threatened infringement was plausibly also directed to customers in the Netherlands, relying in particular on the defendant’s website, which was available in the English-language, the absence of geographic disclaimers, and indications that the defendant was active in multiple UPC countries.
Standing to sue (Article 47 UPCA; Rule 8.4 RoP)
Rivolution argued that it was not clear which entity is entitled to start proceedings based on the patent, and consequently that Art. 47 UPCA was not met.
Applying the “sufficient degree of certainty” test for provisional measures (Rule 211.2 RoP), the Court treated the person recorded as proprietor in the unitary patent register as proprietor (Rule 8.4 RoP). The Court was thus convinced, that Cilag GmbH had the right to sue as proprietor of the patent pursuant to Art. 47 UPCA. Ethicon was found not to have such standing. Therefore, the application insofar as it was filed on behalf of Ethicon was dismissed by the Court.
Unreasonable delay and temporal urgency (Rules 206.2 and 211.4 RoP)
The Court set out that delay under Rule 211.4 RoP is assessed from the point when the applicant became aware (or should have become aware) of the infringement and had sufficient facts and evidence to file a substantiated application. The Court emphasised that claimants may take time to gather reliable information, but must pursue steps with determination and file “without delay” once adequately prepared, and that Rule 211.4 prevents a party “not in a hurry” from using provisional measures to “jump the queue.”
On the facts, the Court identified 11 November 2024 at the latest as the relevant date: by then the applicants had gathered sufficient information to obtain national ex parte relief against the manufacturer of the allegedly infringing cartridge product, and these products had already been analysed in prior enforcement steps. Cilag could not explain why they waited nearly three months before first writing to Rivolution, and longer before filing the UPC PI.
Attempts by Cilag to “revive” urgency based on alleged intensified misconduct by Rivolution were rejected by the Court as insufficiently proven and, in any event, not capable of restoring urgency in the circumstances. Accordingly, the Court dismissed Cilag’s PI application for lack of urgency.
Analysis and implications
For UPC PI strategy, the order confirms that urgency is evidence-driven and timeline-sensitive: any undue delays by the claimant to write to an alleged infringer or to apply for a preliminary injunction with the UPC, while the claimant is already aware of an allegedly infringing product, are generally not accepted by the Court. The decision also illustrates that “revival” arguments face a high threshold where the alleged escalation largely reflects risks that were foreseeable once the alleged infringement was known. Separately, the decision shows the practical importance of aligning the named applicant(s) with the registered proprietor position for unitary patents in PI proceedings.
