UPC Weekly brings you timely, thoughtful and joined-up insight into the evolving landscape of patent litigation at the Unified Patent Court.
2026 Week 26
Quick but detailed – preliminary injunction orders from the UPC just keep on coming. This week there are three to look at, all very different and break new ground in their own ways.
Recap: grounds for a UPC PI
Assuming that the claimant is the patentee or otherwise has standing, in order to grant an inter partes PI, the court needs to be satisfied that:
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the patent (probably) is valid
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the relevant product (probably) does infringe the patent
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there is an infringing act, or infringement is imminent
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the patentee has acted without undue delay
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the PI is necessary and the balance of interests favours the PI being granted
Ex parte PI overturned on review – Cardo v. Reso (UPC LD Milan, 18 June 2026)
The LD Milan was asked to review an ex parte PI granted to Cardo Systems against companies of the Reso group. Cardo had filed an ex parte PI application on 31 October 2025 in view of an upcoming trade fair and an expectation that Reso would exhibit their motorcycle helmet headsets there. Cardo relied on their EP 4240194 B1, and the ex parte PI was granted on 5 November 2026, with the trade fair running between 4 and 9 November 2025. The ex parte order also included an obligation for Reso to deliver up the products and promotional materials at the trade fair. However, the court did require Cardo to put up a €100,000 security.
Reso filed an application for review of the ex parte PI, arguing that the patent was invalid, not infringed and that the balance of interests was not in favour of the PI being granted. They argued that the enforcement of the injunction at the trade fair had caused them serious damage and requested compensation for this, and also requested an interim award of costs.
The outcome of the review turned on the court’s interpretation of claim 1. In addition to parts of the description supporting their interpretation, Reso pointed the court to the EPO prosecution history, in which the patentee had relied and explained the key feature to emphasise how claim 1 is distinguished from the prior art. As explained in UPC Weekly 2026 w21, a clear statement against interest by the patentee in the EPO file wrapper can blow back, as it did here.
On the basis of its claim interpretation, the court decided that there was no literal infringement. The LD considered the parties’ arguments on infringement by equivalence but decided that Cardo had not substantiated their case here. Although the court did not step through any particular test for equivalence, they made clear their view that the alleged infringement operated in contradiction to the claimed subject matter and so (presumably) the “reasonable certainty for third parties” part of The Hague LD DoE test would be failed (see UPC Weekly 2026 w22).
The Milan LD therefore revoked the PI and ordered the return of the seized products. The question then was what to do about costs, the request for compensation and the enforcement security provided by Cardo. The court decided that Reso had not substantiated their assertions of serious reputational damage caused by enforcement of the PI, although the stories of police being involved in the enforcement of the PI at the trade fair seem colourful.
The outcome was therefore that the enforcement security was returned to Cardo but with a €28,000 deduction diverted to Reso as an interim award of costs. Further issues, such as the actual determination of costs, were deferred to the proceedings on the merits for infringement which were started in December 2025 and are now running.
PI requested during main infringement proceedings – Ericsson v. Asustek (UPC LD Milan, 17 June 2026)
By UPC metrics, the SEP/FRAND proceedings between Ericsson and Asustek have been going on for a long time. The infringement action was filed in June 2024, and yet the oral hearing has been scheduled for September 2026. This is another video codec case, relating to the HEVC (H.265) standard that we looked at in UPC Weekly 2026 w25.
Ericsson filed the PI application on 1 April 2026, arguing that the long delay in the main proceedings and Asustek’s launch of new products warranted a preliminary injunction. They also relied on the fact that in different proceedings (German national proceedings involving different claimants), injunctions had been awarded against the defendant. Asustek contended that much of the delay in the proceedings had been due to Ericsson arguing for an external eyes only confidentiality regime.
The Milan LD agreed with Ericsson that it is possible in principle to grant a PI in the course of proceedings on the merits. But, referring to the UPC Court of Appeal decision in Biolitec v. Light Guide (UPC CoA, 24 February 2025), the question is whether a PI should be granted because it is not possible to wait for the decision on the merits. So, when the main infringement proceedings have already been started:
… the applicant must highlight any new or escalating risk that has arisen during the ongoing proceedings and explain why these new facts alter the existing situation to such an extent that a provisional measure is necessary and that it would not be justified to wait for a decision on the merits.
In this case, the court decided not to grant the PI, for lack of necessity/urgency. Ericsson could not just rely on a continuation of the defendant’s alleged infringing activity (including in this case the cyclical launch of new products). The court said:
Instead, the applicant has a specific burden of proof to demonstrate the existence of new, different and supervening factual circumstances which unequivocally indicate an objective deterioration of the existing situation.
The court did carry out an analysis of the length of the infringement proceedings. It was true that the confidentiality regime dispute (which went to the CoA) made the case longer. But this evolution of the length of the proceedings did not give rise to new and compelling circumstances that should lead to a PI. All in all, it’s clear that there’s a high bar for granting a PI in-play, when the end of the main infringement proceedings is in sight.
PI granted on appeal – Occlutech v. Lepu (UPC CoA, 18 June 2026)
We reviewed the underlying first instance decision in UPC Weekly 2025 w44 and 2025 w46, with the court refusing a PI based on EP 1998686 B2. The patent defines an occlusion device for implantation in the body. This is to close an atrial septal defect, for example. The device is claimed as having a specific shape and comprises braiding of thin wires or threads (note the plural). For claim interpretation and an assessment of the risk of infringement, the key point was whether the claim could cover a device comprising a mesh formed using only a single wire.
The Düsseldorf LD did not find much guidance on this point from the description, except that the plural term “wires” was routinely used and general references were made to braiding. What did help the court, though, was the decision of the EPO opposition division. Back in 2012, one of the same prior art documents (CN 2524710Y) had been cited. The patentee had argued that this prior art disclosed an atrial septal defect occlusion device comprising a mesh formed using a single wire, by knitting or weaving. The patentee argued that this was significantly different to braiding of plural wires. The opposition division expressly agreed with this assessment and found claim 1 to be novel for this reason.
On this “single wire” point, the LD considered that there was probably no infringement. However, the LD stepped through the other headings for a PI and explained that there was no undue delay and that the balance of interests between the parties would have justified a PI.
Occlutech filed an appeal against the refusal of the PI. Lepu filed written submissions in the appeal, but were not represented at the oral hearing.
The CoA agreed with nearly everything from the first instance decision – except for one key point. The CoA decided that a product made in a process based on a single wire, but where that wire is cut during the manufacturing process, can still meet the claimed requirement for plural “wires”. From this, the CoA decided that in fact there probably was infringement. Note that there was no comment in the appeal decision on the relevance of the EPO opposition file wrapper, although the conclusion on validity was the same as at first instance. The CoA’s agreement with the remaining issues decided by the Düsseldorf LD led to the conclusion that a PI should be granted.
There are a couple of lessons here. One is probably that not being involved in the appeal hearing will likely leave you exposed. The other is that the UPC CoA is ready and willing to look afresh at the issues, and so you may only have to win on one key point in the appeal for the entire case to go back your way.
