2025 Week 52
They can be conveniently bundled together informally as “provisional measures” at the UPC. But orders for preserving evidence (saisie orders) and preliminary injunctions are different in important ways. In UPC Weekly 2025 w29 we reported on two related Court of Appeal (CoA) decisions on saisies, in which the CoA had explained that materially distinct considerations apply to saisies compared with preliminary injunctions.
This week we take a look at a very clear and short decision from the UPC LD Düsseldorf in Ecovacs Robotics v. Roborock which revokes an earlier saisie order. The strong message in the order is that the court felt misled by the original saisie application, and wouldn’t have granted the saisie if all the relevant facts had been presented.
Saisies – ex parte is normal
When filing a saisie application, the applicant follows the procedure set out in R192 RoP, including the reasons why a saisie order is needed to preserve relevant evidence, and details of where the evidence is.
An application for a saisie is usually made on an ex parte basis. R.192.3 RoP makes it clear that the applicant for the saisie must explain why the proceedings should be ex parte:
… in particular where any delay is likely to cause irreparable harm to the applicant or where there is a demonstrable risk of evidence being destroyed or otherwise ceasing to be available.
Additionally:
The applicant shall be under a duty to disclose any material fact known to it which might influence the Court in deciding whether to make an order without hearing the defendant.
Further, according to R.194.2(a), the court takes the urgency of the action into account when deciding how to proceed.
The original saisie order
The patentee (owner of EP 3808512 B1) had requested a saisie against the defendant, who was exhibiting at a trade fair in Berlin from September to December 2025. The court was persuaded that robot vacuum cleaners falling inside the scope of the claims may be exhibited and that the patentee should be allowed to inspect them there. The saisie was granted shortly before the trade fair and the inspection took place at the trade fair in September 2025.
The patentee also launched patent infringement proceedings at the UPC shortly afterwards.
The review order
The defendant requested a review of the saisie order, arguing that the saisie request was neither necessary nor urgent. Why? Because the alleged infringing products were already on sale on Amazon in Germany. So why go to the bother and theatre of carrying out a saisie application at the trade fair?
The patentee tried to argue that it expected that the defendant would exhibit potentially newer models at the trade fair.
The court was unimpressed. Referring to the UPC LD Brussels review order in Organon v. Genentech, the court noted that a first step in reviewing an ex parte saisie order is to check whether the original request was complete and not misleading.
The patentee clearly knew about the sales via Amazon because this was used as evidence in the main infringement action. The court’s view was that all of the relevant evidence sought in the saisie could have been obtained via a test purchase. Had this been clear from the saisie application, the saisie would not have been ordered. To the extent that there may have been newer models exhibited, the patentee had not provided any reasonably available evidence of this, and the court specifically ruled out the use of saisies for “fishing expeditions”.
The saisie order was therefore completely revoked and the costs for the saisie proceedings placed on the patentee.
To our knowledge, this is the first decision of its kind in which a saisie order has been reviewed and revoked for a failure of the patentee to bring material facts to the attention of the court. This requirement for a duty of candour will not be a surprise for ex parte proceedings, but the emphatic outcome will serve as a cautionary tale for future saisie applications.
Matthew is a UPC Representative and European Patent Attorney. He is a Partner and Litigator at Mewburn Ellis. He handles patent and design work in the fields of materials and engineering. His work encompasses drafting, prosecution, opposition, dispute resolution and litigation – all stages of the patent life cycle. Matthew has a degree and PhD in materials science from the University of Oxford. His focus is on helping clients to navigate the opportunities and challenges of the Unified Patent Court.
Email: matthew.naylor@mewburn.com
