2026-06-18 - LD Milan - Cardo v. Shenzhen Ziwu Chuangxin Technology et al. - UPC-CFI-0001382/2025

ENGLISH: 1. With specific reference to the review of an injunction issued ex parte, the review must be conducted in a manner consistent with the specific grounds raised by the applicant for review, and must involve a thorough assessment of all the grounds on which the request for review is based. The determination of whether the requirements of sufficient degree of certainty (as to validity and infringement) and necessity (balance of interests) must necessarily take into account all the defences raised by the applicant in their application for review, without any possible limitation arising from the adoption of an ex tunc perspective. The respondents (applicants for review) must be given the right to a full defence, enabling them to present every possible argument in support of their case regarding non-infringement and patent invalidity. Similar considerations apply to the balancing of interests, since any factual circumstance — even one that arises after an injunction is issued — may be relevant when weighing up the conflicting interests of the parties to determine which is ultimately most deserving of protection. 2. Conversely, an ex tunc perspective retains its full function and is practically indispensable when the court is required to (re)assess the lack of urgency resulting from the applicant's unreasonable delay in submitting the application for provisional measures. For this purpose, the only circumstances that may be relevant must have arisen prior to the application being filed. Anything that occurs after that point in time is irrelevant. Similar considerations may also be applied with regard to the risk of the applicant misrepresenting facts essential for the court to make a full assessment of the overall factual picture when issuing an ex parte order. Breaches of the duty of candour and misleading representations of facts can only be assessed based on facts that existed before the application was filed.

The Milan LD, deciding an application for review of an injunction granted ex parte, clarified the scope of R. 212.3/197.3 RoP review proceedings: the review must be a full assessment consistent with the grounds raised, and for validity, infringement and the balance of interests it is NOT confined to an ex tunc perspective — post-order circumstances may be considered, in particular for the R. 213.2 RoP compensation assessment. The ex tunc perspective is retained only for re-assessing lack of urgency (unreasonable delay) and breaches of the duty of candour, which can only rest on facts existing before the application was filed. On the merits the Court, applying Art. 69 EPC and the cumulative PI conditions of Art. 62(4) UPCA / R. 211.2 RoP, found neither literal infringement (the accused plunger acted only as an actuating means of the locking unit, not as the claimed separate 'securing element' of feature 1.9; detachment occurred only in the height direction contrary to feature 1.10) nor infringement by equivalence (insufficiently substantiated and incompatible with third-party legal certainty). Failure of the infringement condition alone defeated the PI, so the ex-parte order was revoked in full. The Court awarded the successful respondents an interim cost award of EUR 28,000 (half the EUR 56,000 ceiling for a EUR 500,000 case) and held that R. 211.5 security covers the costs of PI proceedings, leaving no scope for separate R. 158 security for costs.