Provisional measures are ordered by the judge pending the decision on the merits, to prevent an imminent infringement or to stop its continuation (A62 UPCA and R205 to R213 RoP UPC). This is the most feared weapon before the UPC: within a few weeks, an injunction can cover eighteen States.

The available measures

The Court may in particular order (A62(1) and (3) UPCA and R211.1 RoP UPC):

  • injunctions against the alleged infringer or against an intermediary whose services are used by the alleged infringer, where appropriate subject to a recurring penalty payment;
  • authorisation to continue the alleged infringement subject to the provision of security intended to compensate the proprietor;
  • the seizure or delivery up of the products suspected of infringing, so as to prevent their entry into or movement within the channels of commerce;
  • where recovery of damages appears to be jeopardised, the precautionary seizure of the defendant’s property, including the blocking of its bank accounts;
  • an interim award of costs.

The injunction may be general: it is enough for one type of infringing act to be likely to prohibit all forms of infringement; an order to communicate information under Article 67 may also be made at this stage, if urgency and proportionality so warrant (UPC, Court of Appeal, 14 Feb. 2025, Abbott v. Sibio, UPC_CoA_382/2024, headnote).

The requirements

A sufficient degree of certainty: “more likely than not”

The Court may require the applicant to provide reasonable evidence in order to satisfy itself with a sufficient degree of certainty that the applicant is entitled to commence proceedings, that the patent is valid and that it is being infringed, or that such infringement is imminent (A62(4) UPCA and R211.2 RoP UPC).

According to the Court of Appeal, this degree of certainty requires that it be at least more likely than not that the applicant is entitled to commence proceedings and that the patent is infringed; it is lacking if it is more likely than not that the patent is invalid (UPC, Court of Appeal, 26 Feb. 2024, NanoString v. 10x Genomics, UPC_CoA_335/2023, headnote 3).

The burden of proof is allocated as follows: the applicant must establish its entitlement to sue and the infringement; the defendant must establish the invalidity of the patent, except where the measure is sought without hearing the defendant (same decision, headnote 3). The Court of Appeal applies this, for example, in upholding an injunction against software for planning orthodontic treatments (UPC, Court of Appeal, 8 Jul. 2026, Angelalign v. Align, UPC_CoA_36/2026).

The risk of continued infringement in principle follows from past infringement, unless the infringer gives a cease-and-desist undertaking backed by a sufficient penalty clause (UPC, Court of Appeal, 30 Apr. 2025, Insulet v. EOFlow, UPC_CoA_768/2024, headnote 3).

Urgency

The Court takes into account any unreasonable delay in seeking provisional measures (R211.4 RoP UPC). Time runs from the day on which the applicant had, or should have had, sufficient knowledge of the infringement to file a promising application, that is, the necessary facts and evidence; whether a delay is unreasonable depends on the circumstances of the case, and irreparable harm is not a requirement for provisional measures (UPC, Court of Appeal, 25 Sep. 2024, Mammut v. Ortovox, UPC_CoA_182/2024, headnotes 5 to 7).

So there is no hard cut-off; but whoever lets the file gather dust runs the risk of having their own patience held against them.

Balancing of interests

The Court weighs up the interests of the parties, in particular the potential harm to each of them resulting from the granting or refusal of the measure (A62(2) UPCA and R211.3 RoP UPC). Proportionality is a principle of the proceedings (A42 UPCA).

The procedure

The application

The application may be lodged before or after the action on the merits has been started; it contains the measures requested, the reasons why they are needed, the facts and evidence relied on and, where no action on the merits has been started, a concise description of that action (R206.1 and R206.2 RoP UPC). It is subject to a fee of €14,600 plus the value-based fee (R206.5 RoP UPC; see “Court fees and value of the action”). It is brought before the division competent for the merits; an application brought before a division lacking competence is referred to the competent division (UPC, Court of Appeal, 28 Nov. 2025, Yealink v. Barco, UPC_CoA_317/2025, headnote 1).

With or without the defendant

The Court may inform the defendant and invite it to lodge an objection to the application, summon the parties or the applicant alone to an oral hearing; it takes into account in particular any opposition already decided by the EPO, the urgency, the reasons for not hearing the defendant and any protective letter (R209 RoP UPC).

The measures may be ordered without hearing the defendant, in particular where any delay is likely to cause irreparable harm; the defendant is notified at the latest upon execution and may request a review of the order (R212 RoP UPC and A60(5) and (6) UPCA). The applicant must then disclose any material fact, including pending proceedings and any earlier unsuccessful attempts (R206.3 and R206.4 RoP UPC).

The protective letter

A person who fears that an application for provisional measures may be lodged against it may file a protective letter with the Registry, in the language of the patent, setting out the facts, evidence and arguments (including the invalidity of the patent) on which the application should be rejected (R207.1 to R207.3 RoP UPC). The fee is €300 (table of Court fees, section III).

The letter is forwarded to all divisions, but becomes public only when it is forwarded to the applicant, upon an application for provisional measures; it remains on the register for six months, which may be extended (R207.5 to R207.9 RoP UPC). Where a protective letter has been filed, the Court will in particular consider hearing the parties (R209.2(d) RoP UPC), and the applicant may withdraw its application rather than have it examined inter partes (R209.5 RoP UPC).

The order

The Court may make the order subject to security intended to compensate the defendant if the measure is subsequently revoked; it does so in principle where the measure is ordered without hearing the defendant, and the order takes effect only once the security has been provided (R211.5 RoP UPC).

After the order

  • Appeal: the order may be appealed within 15 days (R220.1(c) and R224.1(b) RoP UPC). On appeal, the Court may be more lenient than in proceedings on the merits towards submissions made late, given the speed of the procedure, but less so towards a defendant who, aware of the patent, launched its product at its own risk (UPC, Court of Appeal, 8 Jul. 2026, Angelalign v. Align, UPC_CoA_36/2026, point 159).
  • Action on the merits: the applicant must start proceedings on the merits within 31 calendar days or 20 working days of the date specified in the order, failing which the measures are revoked at the defendant’s request (R213.1 RoP UPC and A60(8) UPCA).
  • Compensation: if the measures are revoked or lapse owing to an act or omission of the applicant, or if it is found that there has been no infringement, the defendant may obtain compensation for the damage suffered (R213.2 RoP UPC and A60(9) UPCA).

Beyond the territory of the UPC

Can a provisional measure cover an EU Member State that has not ratified the Agreement, against a defendant established in a third State? The question has been referred to the CJEU (UPC, Court of Appeal, 6 Mar. 2026, Dyson v. Dreame, UPC_CoA_789/2025 and UPC_CoA_813/2025; see “Jurisdiction of the UPC”).