UPC Court of Appeal confirms a lighter-touch test for evidence preservation than for provisional measures

When TIRU suspected that a waste incineration furnace operated by Valinea Energie infringed its European patent, it did not go straight to court for an injunction. Instead, it asked the Unified Patent Court's Paris Local Division for an order to preserve evidence and inspect the premises, without Valinea or the furnace's manufacturer, Maguin, being heard in advance. The order was granted in December 2024 and executed the following January, the day before the furnace was due to be switched on for the first time. Valinea sought to have the order set aside, arguing that TIRU had waited too long to act and had not been candid about prior art that, in its view, undermined the patent's validity. The Local Division disagreed, and on 15 July 2025 the Court of Appeal upheld that decision in full (TIRU v Valinea, PC_CoA_002/2025).

The case turned on procedural questions rather than infringement itself, but the Court of Appeal's reasoning is instructive well beyond the facts of this particular dispute. It sets out, with particular clarity, how far the test for obtaining an order to preserve evidence diverges from the test for obtaining provisional measures such as an interim injunction — two forms of interim relief that are often discussed together but are governed by materially different rules.

Two different gateways to interim relief

Provisional measures, dealt with under Part 3 of the UPC Rules of Procedure, allow a patentee to stop alleged infringement before a case is decided on the merits. Because they can shut down a defendant's commercial activity overnight, the Rules build in safeguards: under Rule 211.2, the Court must be satisfied with a sufficient degree of certainty that the patent is valid, and under Rule 211.4, it must also weigh any unreasonable delay by the applicant in seeking the measure.

Evidence preservation, by contrast, exists to secure proof before it disappears, not to halt an activity. It is rooted in Article 60 of the UPC Agreement and Rules 192 to 197, and reflects the kind of saisie-contrefaçon procedure long familiar in French patent practice. An applicant who wants such an order granted without the defendant being heard must explain why, and must disclose any material fact that could affect the Court's decision to proceed on that basis (Rule 192.3). The Court then weighs urgency, the strength of the reasons for proceeding without notice, and the probability that evidence will be lost or destroyed (Rule 194.2).

The Court of Appeal's central point in TIRU v Valinea is that these two regimes should not be read across into one another. Two features of the provisional measures test, in particular, have no equivalent when it comes to preserving evidence.

No penalty for the time taken to prepare an application

Under Rule 211.4, a patentee seeking an interim injunction can be refused relief if it sat on its hands for too long. Valinea argued that the same logic should apply here: TIRU, it said, had known about the allegedly infringing furnace since at least August 2024 but did not apply for measures until mid-December. The Court of Appeal rejected the comparison outright. Nothing in the UPC Agreement or the Rules of Procedure imposes an unreasonable-delay requirement on applications to preserve evidence. What matters under Rule 194.2(a) is whether the action is urgent at the point the application is decided, not how the applicant's timeline compares to some abstract standard of promptness. On the facts, the two months TIRU took between identifying clear evidence of a likely infringement — a YouTube video showing the furnace's features — and filing its application was found to be a reasonable period for preparing the case, and did nothing to undermine the urgency that justified proceeding without notice to Valinea.

No requirement to assess patent validity

The second, and arguably more significant, distinction concerns validity. Rule 211.2 requires the Court to be satisfied, to a sufficient degree of certainty, that the patent is valid before granting provisional measures. There is no parallel requirement for evidence preservation. The Court of Appeal confirmed that a judge deciding whether to order measures to preserve evidence is simply not required to engage with validity at all; that question remains for the judge dealing with the merits, or with any later application for provisional measures, unless the presumption of validity has already been put in clear doubt — for example, by an adverse decision of an EPO Opposition Division or Board of Appeal, or by revocation proceedings before another court.

This had a direct bearing on Valinea's duty-of-candour argument. Valinea claimed TIRU should have disclosed an older furnace design, and a prior patent already cited in its own patent specification, both of which it said anticipated the claims at issue. The Court held that neither needed to be disclosed under Rule 192.3. A document already cited in the patent itself is not new information for the Court. And because assessing the relevance of prior art is a matter for the merits judge, an applicant for evidence preservation has no general obligation to volunteer prior art it may be aware of, unless that prior art is so obviously decisive that it would be likely to influence the specific, narrow decision of whether to proceed without notice. Awareness of a potentially relevant earlier design, without more, falls well short of that threshold.

Why the distinction matters

The practical effect is that the UPC's evidence preservation regime is, by design, a more accessible tool than provisional measures. A patentee does not need to build a validity case or justify every week of its pre-filing timeline to obtain an order securing evidence of suspected infringement — only to show that the situation is genuinely urgent and that there is a real risk evidence will be lost. That asymmetry reflects the different purpose the two remedies serve: one preserves the status quo of available proof, the other restrains a defendant's conduct, and the latter understandably attracts the more demanding test.

For defendants on the receiving end of an ex parte evidence preservation order, this decision is a reminder that arguments about delay or validity will carry little weight at the revocation stage unless they go directly to the narrower questions the Court is actually required to consider: urgency, the risk of evidence disappearing, and whether the applicant withheld something it was specifically obliged to disclose. Those wishing to challenge such orders are better served focusing on those issues than on broader merits-based arguments that the UPC has now made clear belong elsewhere in the proceedings.

Marks & Clerk's UPC litigation team regularly advises both patentees and defendants on evidence preservation and provisional measures strategy before the Unified Patent Court. Please get in touch if you would like to discuss how this decision may affect your approach to UPC proceedings.

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