Cilag & Ethicon v Rivolution (UPC_CFI_374/2025)
Decision date:
29 August 2025
Osborne Clarke summary
- Cilag and Ethicon, both part of the Johnson & Johnson group, brought applications for a preliminary injunction against Rivolution for alleged infringement of a patent in the group's portfolio relating to cartridges for medical stapling devices.
- Although The Hague LD had jurisdiction and Cilag had standing to sue, the court dismissed its application on the basis that the urgency requirement was not met as it had acted with unreasonable delay. The court also dismissed Ethicon's application, but this was due to a lack of standing to sue.
- The court noted that Rule 211.4 RoP ensures that an applicant whose conduct "indicates that it is not in a hurry" cannot expect assistance from the court by way of provisional measures. This is because the main proceedings in the UPC are to be concluded within approximately one year and therefore a patent holder who acts with unreasonable delay should not be allowed to "jump the queue". Despite this, the court stated that the reverse conclusion does not apply. That is, just because an applicant has acted quickly does not mean that provisional measure must be granted. The provisional measures must also be objectively urgent/necessary.
- The Hague LD accepted that a party must be given time to consider the potential infringement to substantiate and prepare the preliminary injunction application. However, the court explained that Cilag had become aware of the infringement in November 2024 when Rivolution promoted a study involving the cartridges at an industry event in Frankfurt. Cilag had obtained an ex parte injunction in Germany against a separate company based on alleged infringement of the patent in suit. The court noted that enough evidence had been gathered to file that ex parte application in the German national court and therefore it was not clear why Cilag had not immediately acted. Its UPC application for a preliminary injunction was not filed until April 2025.
- Cilag argued that the urgency "revived" in April 2025 because it was then that it became aware that "the extent of the infringement by Rivolution was much larger than previously known". This argument was swiftly rejected by The Hague LD, which stated that Rivolution's actions were to be expected and did not create new urgency. Cilag should have realised in November 2024 that there was a risk of price erosion.
- As temporal urgency had not been established, the court did not go on to consider the objective urgency/necessity of the measures or any other defences raised by Rivolution.
Issue
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