Stromer

Aug 25, 2023

To embed, copy and paste the code into your website or blog: <iframe frameborder="1" height="620" scrolling="auto" src="//www.jdsupra.com/post/contentViewerEmbed.aspx?fid=91e7970f-58b9-4c9a-b823-c96854c70486" style="border: 2px solid #ccc; overflow-x:hidden !important; overflow:hidden;" width="100%"></iframe> The Unified Patent Court (UPC) has issued its first reasoned decisions since launching on June 1 and, as expected, the decisions favor patentees. The UPC’s Local Division Düsseldorf ordered a preliminary injunction in one case while in two other cases, the Local Division Milan issued two orders against accused infringers for the preservation of evidence. All three decisions concern trade fairs. IN DEPTH THE LOCAL DIVISION DÜSSELDORF’S DECISION In June, Swiss e-bike manufacturer myStromer AG and its competitor Revolt Zycling AG were both exhibiting their bicycles at Eurobike 2023, one of Europe’s largest bike trade fairs. MyStromer applied for a preliminary injunction against Revolt Zycling because it claimed that the way Revolt Zycling’s hub motor was mounted in the bike frame infringed on myStromer’s patent. The Local Division Düsseldorf ordered an ex parte preliminary injunction against Revolt Zycling. It found that said bicycle prima facie infringes myStromer’s patent. No prior art was shown to question the validity of the patent and the patent had been neither opposed before the European Patent Office nor subject to national invalidity proceedings. There was also credible irreparable damage given that Eurobike is “an important trade fair of considerable relevance for the entire industry.” Delivery of the provisionally infringing bicycles was also ordered. Before the UPC issued its decision, Revolt Zycling submitted a protective letter. However, the preliminary injunction was granted without an oral hearing and within hours of myStromer filing its application. The UPC assumed a high urgency due to Eurobike ending three days after the date of the application. The day the UPC’s decision was issued, a bailiff confiscated all of Revolt Zycling’s bikes, leaving its booth empty. THE LOCAL DIVISION MILAN’S DECISIONS Also in June, Oerlikon Textile GmbH & Co. K.G. initiated two proceedings against two different defendants who were exhibiting textile machines at ITMA 2023, the world’s largest international textile and garment technology exhibition. The Local Division Milan granted the two nearly identical applications based on the same patent seeking an order to preserve evidence. Those applications were based on allegations that the machines displayed by the defendants at the trade fair were infringing Oerlikon’s patent. The UPC found that the evidence submitted by Oerlikon, which consisted of photographs of the allegedly infringing machines and posters that were taken at the defendants’ fair booths and a technical evaluation by a patent lawyer appointed by Oerlikon, sufficiently supported the infringement claims. One of the applications was filed two days before the fair ended while the other one was filed only one day before it ended. This gave grounds for the high urgency of the proceedings and therefore justified an ex parte decision, even though no protective letter had been filed and the enforced patent had not withstood any challenge against its validity (for example, in opposition proceedings). Both decisions were issued the day after Oerlikon’s respective applications were filed. WHAT WE’VE LEARNED FROM THE FIRST REASONED DECISIONS These first reasoned UPC decisions confirm an anticipated tendency to rule in favor of the claimant. All three decisions were swift and surprising, fully granting the applications ex parte without giving the defendants an opportunity to present their cases at a hearing. These early decisions from the UPC are likely to attract more of these applications.