1. Key takeaways
Urgency for provisional measures is assessed per patent: delaying filing to consolidate all patents into one application can constitute unreasonable delay under R. 211.4 RoP.
If a patent holder analyzes a document revealing infringement of one patent, it cannot ignore that the same document may reveal infringement of its other patents (blind eye doctrine).
No general obligation to monitor the market, but once specific circumstances suggest infringement, due diligence is required; long-standing infringement may indicate the patent holder turned a blind eye.
For legal entities, urgency under R. 211.4 RoP is assessed by reference to when the relevant internal decision-maker became aware of the infringement, not just any employee.
The decisive person is someone capable of pursuing or reporting infringement — e.g., a legal department employee, senior sales staff, or a specially engaged mystery shopper. Attendance of non-IP staff at industry events is insufficient to establish relevant knowledge. Adverse inferences may be drawn where witness statements are imprecise about the date of awareness.
A patent holder may await a response to a warning letter before filing for provisional measures, but only for patents actually referenced in that letter (R. 211.4 RoP).
Cross-appeals aimed solely at changing the reasoning of a decision that is favorable in its result to the cross-appellant are inadmissible under R. 220.1 and R. 237 RoP.
Interim costs awards are generally set at 50% of the applicable ceiling; the unsuccessful party bears reasonable costs under Art. 69(1) UPCA, subject to equity-based exceptions under Art. 69(2) UPCA.
2. Division
Court of Appeal (impugned order: Local Division Paris)
3. UPC number
UPC-CoA-19/2026 (first instance: UPC_CFI_808/2025)
4. Type of proceedings
Appeal proceedings against an order on provisional measures
5. Parties
Appellant / Applicant before the Court of First Instance: Guardant Health, Inc., Palo Alto, California, USA
vs.
Respondents / Defendants before the Court of First Instance:
Sophia Genetics SA, Rolle, Switzerland (also Cross-Appellant)
Sophia Genetics SAS, Bidart, France
Sophia Genetics SRL, Milan, Italy
Sophia Genetics GmbH, Freiburg, Germany
6. Patent(s)
EP 3 443 066 (Unitary Effect)
7. Jurisdictions
UPC, Spain, Switzerland
8. Body of legislation / Rules
R. 206.2 RoP
R. 211.4 RoP
R. 220.1 RoP
R. 222.2 RoP
R. 237 RoP
R. 242.1 RoP
R. 371.4 RoP
Art. 69(1), (2), (3) UPCA
Art. 138(1)(c) EPC
Art. 123(2) EPC
Art. 4 in conjunction with Art. 71b(1) Regulation (EU) 1215/2012
Art. 8(1) Regulation (EU) 1215/2012
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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