2024-10-15 - LD Lisbon - Ericsson v. ASUS et al. - UPC_CFI_317/2024

1. When challenging the competence of the local division where the case was lodged according to Art. 33(1)(a) UPCA (place of the actual or threatened infringement), the defendant must provide arguments against the territorial connection with the UPC Contracting Member State where that local/regional division is located. The argument provided by the defendant that such division has no competence because no acts of infringement were committed is irrelevant to the issue of territorial competence, as it is a defence based on the merits. 2. Art. 33(1)(a) UPCA establishes an objective link which refers to the place of the infringement and not to the quality of the accused entity – as infringer or intermediary. In that regard, Art. 33(1)(a) UPCA is applicable to intermediaries according to Art. 62 UPCA. Thus, it applies regardless of whether the defendant is an infringer or an intermediary. There is no legal basis for taking different views of the infringer and the intermediary in terms of competence. 3. In provisional measures, the court must be able to objectively conclude from the application that there is urgency and therefore a need to anticipate the protection of the applicant’s rights. It is the applicant who must convince the court, in light of the particular facts of the case, that it has not delayed proceedings unnecessarily. To that extent, the applicant must provide the court with the information of the moment when it became aware of the infringement. When the applicant is silent about that date and the court has no way of ascertaining it, the court may solely rely on the date of the alleged infringement, for the assessment of unreasonable delay. 4. The requirements for granting preliminary injunctions – validity of the patent, actual or imminent infringement, urgency and balance of interests – are cumulative, allowing the court not to address them all, if one is not satisfied. However, when that assessment is not possible at an early stage of the proceedings in order to hear the parties accordingly, the court may exercise discretion in assessing the other requirements presented by the parties. 5. Merely owning an internet domain or subdomains constitutes infringement according to Art. 25(a) UPCA if through that domain infringing products are offered and/or sold.

The Lisbon Local Division dismissed the application for provisional measures, stating that the applicant "failed to provide sufficient temporal elements enabling the Court to assess its diligence in initiating proceedings. However, the Court then continued to find the patent valid and infringed.