Under the UPC rules, an applicant can seek an order to preserve evidence or permit inspection of evidence. This procedure resembles the "Saisie-Contrefaçon" procedure, a common feature of patent litigation in France.
In short, an order can be sought, even as a pre-action step, by a prospective claimant, even without hearing the defendant (ex parte) in certain circumstances (including where any delays might cause irreparable harm to the applicant or where there is risk of important evidence being destroyed). Recent UPC decisions have demonstrated the readiness of the UPC to act swiftly in granting saisie orders in urgent matters.
This type of order is broad in that it can cover inspection of premises, securing physical samples and seizure of infringing items, disclosure of digital media and data and the disclosure of passwords required to access them. Obtaining such evidence may be important, particularly at a pre action stage, in respect of cases concerning the suspected infringement of process claims, which are notoriously hard to evidence - click here for more information on this. Note that an inspection of premises is carried out by an independent professional practitioner appointed by the Court.
To obtain an order for the preservation of evidence or inspection, a patentee must present the Court with evidence supporting a claim that a patent has been infringed or is about to be infringed, as well as demonstrating the need for urgency. If the order is sought before proceedings are initiated, a concise description of the prospective action and facts and evidence relied on should be provided. If the order is requested ex-parte, justification for not hearing the defendant should also be provided.
Saisie orders are a broad and powerful evidential tool available under UPC procedure, which parties should consider utilising before initiating actions, to secure vital evidence to establish their case.
