UPC: “More likely than not” standard used in preliminary finding on equivalent infringement

When considering if provisional measures are to be granted, the UPC considers, inter alia, if the patent in question is more like than not to be valid and is more like than not to be infringed. Given the nature of the proceedings relating to provisional measures, and in particular the far shorter written phase preceding the decision, the application of the “more likely than not” standard seems appropriate. To date, decisions were limited to orders concerned with direct infringement.  

UPC orders on the substance dealing with infringement by equivalent are scarce thus far but the Hague Local Division has now based an order for provisional measures on the doctrine of equivalence, using the Plant-e v. Arkyne test (The Hague Local Division, 22 November 2024), again applying the “more likely than not” standard to infringement, with an L-shaped plastic strip being found equivalent to the claimed metal element.  

The panel found that Washtower’s current and earmarked market share was at risk of irreparable harm before culmination of full proceedings. Alleged “locked-in” lost custom and a finding of being undercut in pricing by BEGA, as well as the relative economic impacts on the parties, appear to have led the panel to decide that the balance of interests lay in Washtower’s favour. 

On this basis, SME Applicants Washtower (Washtower IP and Washtower IP BV) were awarded inter alia preliminary injunction, information, and recall orders, of which the former two were subsequently enforced, upon payment of a €50,000 security deposit.