OTEC v Steros (UPC_CFI_885/2025)

• On 22 September 2025, in advance of commencing a main action, OTEC made an ex parte application for provisional measures, namely, the inspection and preservation of evidence at Steros' exhibition stand at a trade fair that was due to take place in Hannover from 22-26 September 2025.
• Steros is a company in various technology areas, including surface finishing, marine robotics, high-performance electronics and medical technology. On its website, it advertises the "DLyte" series of electropolishing machines. OTEC had previously filed an application for inspection of the "DLyte Compact" series machine. This application was granted and the inspection took place on 26 March 2025 at a different trade fair. Following receipt of the expert opinion, OTEC filed a main action with the Düsseldorf LD on 12 June 2025.
• The present application concerned the "PRO500" machine. OTEC submitted that it was not possible to gain access to this machine during the previous trade fair because the product was not exhibited. OTEC further submitted that it was not reasonable to gain access to the "PRO500" machine by test purchase because it was priced at over €100,000 and its distribution channels were limited.
• The Düsseldorf LD found that the matter was urgent and that it was appropriate to issue the order ex parte because there was a demonstratable risk that evidence would be destroyed or no longer available for other reasons. OTEC had also "credibly demonstrated" that the patent was potentially infringed by Steros.
• Although Steros had previously filed a counterclaim for invalidity in response to the main infringement action, the court found that OTEC was not required to make further submissions on validity "[s]ince there is no clear indication that the validity of the patent in suit should be called into question". This follows the Court of Appeal's approach in Valinea Energie v Tiru & Maguin SAS v Tiru, where it held that for ex parte inspection and evidence seizure orders, validity does not play a role "unless the presumption of validity can be clearly called into question". In this instance, the court relied on the fact that there had been no negative decisions against the patent.

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