Nanoval v ALD Vacuum (UPC_CFI_63/2025)

• This decision concerned the review of an order for preservation of evidence and inspection under Rule 197.3 RoP. Nanoval had applied for, and the Munich LD ordered, measures to preserve evidence (saisie) and an inspection pursuant to Rule 192 RoP et seq.
• In requesting a review of the order, ALD Vacuum argued that the order should be annulled because i) Nanoval had not demonstrated a likelihood of patent infringement and ii) proof of the risk of a loss of evidence had not been provided.
• The Munich LD dismissed ALD Vacuum's request for annulment, holding that Nanoval had submitted all the evidence reasonably available to it to substantiate the allegation of infringement in accordance with Article 60 UPCA.
• The court held that ALD Vacuum had wrongly based its arguments to overturn the order on the risk of evidence destruction. However, according to Article 60(5) UPCA, the risk of evidence destruction is a reason for ordering the measures without hearing the other party. Conversely, Article 60(6) UPCA and Rule 197 RoP provide for a review of an order when the other party has not been heard and the possible destruction of evidence does not play a role in that review: the examination is solely whether the measures were rightly ordered.
• ALD Vacuum also argued that the fact it had deposited a protective letter was assessed by the court as a "lack of willingness to cooperate", which the Munich LD found to be incorrect. The court reminded the parties that the right to file a protective letter and therefore to defend oneself pre-emptively against a possible infringement allegation must not be seen as a disadvantage to the party filing it. It confirmed that the court did not do so and concluded a lack of willingness to cooperate from the apparently deliberate exclusion of appropriate information that meant an inspection could have been avoided.
• ALD Vacuum's review application was rejected and the evidence preservation and inspection order was maintained.

This analysis is based on a machine translation of a decision not available in English.