2026-06-17 - LD Milan - Ericsson v. ASUS et al. - UPC-CFI-0001130/2026

ENGLISH: 1. Applications for provisional measures (including injunctions) can be submitted at any stage of the main proceedings, even towards the end. Since there is no respective legal limitation in R. 206.1 RoP, these requests must insofar be regarded as admissible. 2. When a request for interim relief is filed after the main proceedings on the merits of the case has started, the requirements of urgency and balancing the parties’ interests have a more specific meaning. Pursuant to Art. 62 UPCA and R. 206 - 211 RoP, these conditions take on particular significance in the final stage of proceedings on the merits. In particular, the applicant must highlight any new or escalating risk that has arisen during the ongoing proceedings and explain why these new facts alter the existing situation to such an extent that a provisional measure is necessary and that it would not be justified to wait for a decision on the merits. In other words and according to these same principles, if the proceedings on the merits have reached the final stages, the Court must assess whether the applicant can be expected to await the final decision on the merits. If so, the Court may dismiss the application for provisional measures. 3. The applicant must prove that it is not possible to await the final decision on the merits, without being exposed to a serious, unforeseen prejudice that recently arose during the proceedings. If the patent holder decides to submit an application for interim measures during ongoing proceedings on the merits, the applicant cannot simply rely on a continuation of the defendant’s unlawful conduct. Instead, the applicant has a specific burden of proof to demonstrate the existence of new, different and supervening factual circumstances which unequivocally indicate an objective deterioration of the existing situation. It is not sufficient to substantiate these circumstances merely by demonstrating an increase in financial loss. Once infringement has commenced, temporal aggravation of economic damage during the proceedings - without the injured party having sought urgent relief - is usually inherent, as patent infringement is often continued at least until a final order is issued. In other words, if the applicant chooses to seek protection of its rights within the timeframes specific to the proceedings on the merits, the application for interim relief must be based on grounds going beyond a temporal aggravation related to the time required to reach a conclusion of the proceedings.

The Milan LD dismissed Ericsson's application for provisional measures against ASUSTeK over HEVC/H.265 SEP EP 3 076 673, filed on 1 April 2026 while the main infringement action (UPC_CFI_319/2024) and revocation counterclaim (728/2024) were already pending. The Court held that, although a PI may be sought at any stage of the main proceedings and such requests are admissible under R. 206.1 RoP (with court fees due under R. 206.5 regardless of timing), urgency and the balance of interests take on a more specific meaning once the merits proceedings are underway: the applicant bears a specific burden to demonstrate new, different and supervening factual circumstances objectively deteriorating the situation, such that it cannot be expected to await the final decision; a mere temporal aggravation of economic loss inherent in continued infringement does not suffice, the main proceedings being the rule and provisional measures the exception. Applying this framework, none of Ericsson's three asserted circumstances qualified — the length of the proceedings was justified by the complexity of the case (in particular the EEO-regime confidentiality appeal) and largely attributable to mutual extensions and Ericsson's own conduct; the German national judgments against ASUSTeK (Nokia, Wilus) were non-final, did not quantify or order payment of damages, concerned different parties and (in part) a different standard, and showed no systematic evasion; and the new product launches were a routine 'technology refresh' continuing a situation known since May 2024. The Court also held Ericsson's alternative request to order a bank guarantee securing damages recovery inadmissible for want of a clear UPCA/RoP basis, distinguishing it from a precautionary seizure under Art. 62(3) UPCA / R. 211.1(c) RoP, and found no evidence of ASUSTeK's insolvency or asset deterioration. The PI failing the cumulative urgency condition, no other requirement was assessed and ASUSTeK's R. 262.2 confidentiality application was left undecided.