Interim remedies at the UPC: “special circumstances” in security and the provision of information

In an Order dated 20 December 2024, interim remedies were granted to Pohl-Boskamp, against defendants Pharma-aktiva (both German pharmaceutical companies) and several entities of the well-known German retailer ALDI in relation to an infringement action regarding a patented composition for combating head lice. Whilst the applicant was successful in obtaining all but one of the interim remedies sought, the Order provided some insight as to the “special circumstances” required for grant of the provisional measures rejected by the Court, namely the provision of information, and a security deposit requested by the defendants.

In denying the applicant’s request for the provision of information, the Court stated that, unlike other interim remedies, “the provision of information [cannot] be undone” and thus can only be considered in “special circumstances”. The Order provided an illustrative scenario in which such special circumstances may be present. In particular, the court argued that, in the illustrative example of a claimant being confronted with a large number of “obviously infringing products” in a piracy case or similar, a delay in the provision of information could undermine the claimant’s ability to identify the source(s) of infringement. In such circumstances an interim order for information would be justified. On the facts of the present case, the Court ruled that the applicant did not meet this requirement, given that Pharma-aktiva is the undisputed manufacturer of the contested products.

With regard to the request for security, the Court noted that the defendants, before the application for interim measures was served, had already discontinued distribution and planned to destroy existing stock. Notwithstanding the fact that the defendants did not substantially dispute infringement, the Court ruled that these “special circumstances” would make it inappropriate to order security, given that “they cannot suffer any significant damage as a result of the Order for interim measures”.

This Order demonstrates the different requirements prospective claimants should be mindful of when seeking certain interim remedies at the UPC, and similarly for defendants seeking security in response.

Patent holders seeking interim remedies before the UPC should carefully consider the Court’s high threshold for certain measures. When requesting the provision of information, claimants should be prepared to demonstrate “special circumstances,” such as large-scale piracy or difficulties in tracing the source of infringement. Additionally, when seeking security from defendants, claimants must account for factors like discontinued distribution or stock destruction, which may limit the Court’s willingness to grant such relief. A well-prepared application that aligns with these principles will maximise the chances of securing effective interim measures.