The Düsseldorf Local Division has provided further guidance on urgency in UPC preliminary injunction proceedings, with particular focus on the allocation of the burden of substantiation where defendants argue that the applicant waited too long before seeking relief.
Of broader significance are the Court’s detailed statements on Rule 211.4 RoP. The decision clarifies what a patent proprietor must explain regarding the timeline from first awareness of a potentially infringing product to filing a PI application, and how the burden shifts where defendants rely on alleged earlier knowledge or constructive knowledge.
The most important aspect of the order lies in the Division’s allocation of the burden of substantiation.
According to the headnotes, the applicant bears the primary burden of substantiating when it became aware of the existence of the challenged embodiment, when it recognised a potential infringement scenario, and how it pursued clarification of the facts thereafter.
The relevant period extends from first knowledge of the challenged product as a potentially infringing embodiment until the point at which the applicant has assembled the facts and evidence necessary to present a fully substantiated infringement case.
This is practically important. A patent proprietor cannot simply state that technical investigations were necessary. It must explain concretely what steps were taken, when they were taken, and why the timeline was justified.
The Court also addressed constructive knowledge.
It held that constructive knowledge exists where, under ordinary circumstances and the normal course of events, the applicant should have become aware of potentially infringing characteristics.
However, the Court did not place the full burden on the applicant from the outset.
Instead, defendants bear the burden of substantiating and proving the factual indicators from which earlier constructive knowledge and dilatory conduct may be inferred. Only once such indicators are specifically established does the burden shift back to the applicant to rebut that inference or explain why earlier knowledge should not be assumed.
This is a notable clarification. The decision avoids an overly claimant-unfriendly approach under which patentees would effectively need to disprove hypothetical earlier awareness in every case.
On the facts, the defendants pointed to several circumstances suggesting that Ottobock should have acted earlier.
The allegedly infringing product had already appeared at US trade fairs in 2024 and early 2025. It had been advertised in specialist publications from February 2025 and was launched in Europe at Expolife in Kassel in March 2025. Ottobock itself was active in the relevant market and maintained an extensive care network.
Ottobock argued that meaningful technical analysis required acquisition of the product, app access, and gait-laboratory testing.
The Court accepted in principle that a PI applicant must be sufficiently prepared and cannot be expected to conduct essential investigations only after filing. But that did not resolve the decisive issue: why those steps were not initiated earlier.
The Court considered that Ottobock had not sufficiently explained why it could not or should not have sought acquisition and investigation already by around July 2025. Even assuming that later testing was diligently performed, the Court concluded that the filing in December 2025 came too late.
Importantly, the Court did not definitively find actual undue delay. Rather, it held that such delay could not be excluded, which was enough to defeat urgency.
