Telefonaktiebolaget LM Ericsson v ASUSTeK
UPC-CFI-1129/2026 (Milan LD), order of 17 June 20261
The Milan Local Division refused an application for provisional measures brought after infringement proceedings had already begun. While confirming that such applications are admissible at any stage, the court held that where the merits case is already well advanced, the requirements of urgency and balance of interests take on particular significance. The applicant must show new circumstances arising during the proceedings that make it unjustified to expect it to wait for the final decision. Ericsson failed to do so, so the application was dismissed for lack of urgency.
Ericsson sought provisional measures against ASUSTeK and Arvato based on alleged infringement of EP 2727342 (HEVC video coding technology). The application was filed on 1 April 2026, around 21 months after the infringement action began. Ericsson relied on three alleged new developments: delay in the main proceedings, German infringement decisions against ASUSTeK, and the launch of new allegedly infringing products.
The Court confirmed that a late application for provisional measures is admissible even where the main infringement action is already well advanced. Rule 206 RoP does not impose a hard time limit, so interim relief remains available in principle at any stage of the proceedings. However, the later the application is made, the more exceptional the relief becomes. In the Court’s view, once the merits proceedings are nearing conclusion, the ordinary route to relief is the final decision, and any request for interim measures must therefore be examined with particular care.
That context has important consequences for urgency. In a late-stage case, urgency is not assessed in the abstract, but by asking whether the applicant can reasonably be expected to wait for the final decision. Interim relief will only be justified if the remaining delay would expose the applicant to harm that cannot fairly be tolerated in light of the short time left before judgment.
For that reason, the Court required Ericsson to identify new circumstances arising during the proceedings that changed the position in a significant way. Mere continuation of the alleged infringement was not enough. Nor was it sufficient to point to the fact that losses may accumulate over time: increasing financial harm is inherent in any continuing infringement and does not, without more, create urgency. What was needed was evidence of real worsening in the situation based on new facts.
The Court also focused on Ericsson’s conduct and the procedural history. Ericsson’s delay argument focused on the fact that the oral hearing had been listed for 24–25 September 2026, more than two years after the merits action began. However, Ericsson had tolerated the alleged infringement for at least 16 months before seeking interim relief (it is not entirely clear where this 16-month period comes from, but this is the period mentioned by the Court in the order).
The Court also noted that the parties had discussed ASUSTeK’s HEVC implementation for several years before the merits proceedings began. That wider history sat uneasily with Ericsson’s claim that immediate intervention was necessary. The Court further noted that the timetable reflected the complexity of the case, including the confidentiality regime, Ericsson’s request for an external-eyes-only regime, and the related appeal. The resulting timetable did not amount to a new urgent circumstance.
Ericsson’s reliance on parallel German infringement decisions did not alter the analysis. Although those decisions included findings against ASUSTeK, they were not final, concerned different parties, and did not order ASUSTeK to pay any quantified damages. Nor did they show that ASUSTeK had failed to comply with the German orders or that its financial position had worsened. The Court also noted that findings about ASUSTeK’s conduct in negotiations with other patent holders could not simply be transferred to its dealings with Ericsson, especially where one of the German cases concerned Wi-Fi 6 rather than HEVC. In the Court’s view, national decisions of that kind may be relevant, but they must point to a real risk justifying immediate UPC intervention.
The launch of new allegedly infringing products was treated in a similar way. The Court characterised those launches as part of a normal technology refresh, noting that ASUSTeK had also launched new products in 2024 and 2025 after the merits action began. Without evidence that the new products changed the commercial or legal risk in a meaningful way, or significantly increased the alleged harm, routine product updates could not support a finding of urgency.
The application for provisional measures was dismissed for lack of urgency. The Court did not assess other requirements, such as validity or infringement. The Court also considered the alternative request for security for damages open to doubt on admissibility. Even if treated as analogous to precautionary seizure under Art. 62(3) UPCA, it was unsupported by evidence that recovery of damages was at risk. Costs were reserved to the main proceedings.