OTEC Präzisionsfinish GmbH vs STEROS GPA INNOVATIVE S.L.
UPC_CFI_885/2025 (Dusseldorf LD), order of 4 May 20261; UPC_CFI_885/2025 (Dusseldorf LD), order of 22 September 20252
The Order is significant because it shows what happens when an applicant obtains ex parte inspection and evidence-preservation measures before the UPC, but then does not follow through with infringement proceedings on the merits within the time limit prescribed by the UPCA and the Rules of Procedure. The Dusseldorf Local Division did not merely revoke the earlier inspection order. It also required the applicant and its external representatives to return all evidence obtained through the execution of that order, destroy or irreversibly delete copies, and made clear that a claim for “appropriate compensation” under Article 60(9) UPCA is conceptually distinct from recoverable procedural costs. In that respect, the Order is an important reminder that measures under Article 60 UPCA are strictly conditional and that the court will actively reverse their effects if the applicant does not timely commence main proceedings.
The dispute arose out of an intended infringement action concerning EP 2 983 864 B1. Before bringing proceedings on the merits, OTEC applied on 22 September 2025 for an order permitting inspection and preservation of evidence at the trade fair stand of STEROS GPA INNOVATIVE S.L. at EMO Messe Hannover 2025. On the same day, the Dusseldorf Local Division, acting without first hearing the respondent, granted extensive inspection measures in relation to a functioning “DLyte PRO500 Automated Cell”.
The court also appointed an expert and a bailiff, coupled the measures with confidentiality protections, and expressly stated that the measures would be revoked or otherwise cease to have effect if the applicant failed to bring proceedings against the respondent within the period specified after disclosure of the expert description (no. XIV of the order).
That ex parte order was then executed on 24 September 2025 at the respondent’s exhibition stand in Hannover. The court-appointed expert prepared the required detailed description on 8 October 2025. By procedural order of 30 October 2025, the judge-rapporteur invited the respondent to assert any confidentiality interests by 13 November 2025. After the respondent did not make use of that opportunity, the judge-rapporteur on 17 November 2025 ordered release of the unredacted expert description including annexes and lifted the confidentiality regime vis-à-vis the applicant in relation to the facts contained in that written description.
No action on the merits was filed within the relevant period after disclosure of the expert report. On 4 February 2026, the respondent therefore applied for the inspection and evidence-preservation measures to be revoked (alternatively declared ineffective), sought return of all evidence obtained through the execution of the measures, destruction of copies and the expert report with annexes, and requested payment of EUR 11,390 as compensation for damage allegedly caused by the measures. The respondent’s quantified amount was based on attorney fees, patent attorney fees and translation costs. The applicant opposed the request for compensation and also challenged the legal basis for return and destruction of the materials.
The Dusseldorf Local Division based its revocation order on Article 60(8) UPCA and Rules 198.1, 199.2 RoP. Applying those provisions, the court concluded that the statutory preconditions for revoking the order were met. It held that, under the terms of the original inspection order and the later release order, the relevant period began to run when the detailed description was disclosed, which occurred upon the release order of 17 November 2025. Because no main action had been brought within the required period thereafter, the earlier inspection and evidence-preservation order had to be revoked. The decision is therefore a straightforward but important confirmation that the UPC will enforce the strict temporal link between ex parte interim evidence measures and prompt commencement of main proceedings. Applicants cannot treat an Article 60 order as a freestanding investigatory tool that remains effective even if no merits case follows.
The more practically significant aspect of the Order lies in its treatment of the consequences of revocation. The court required the applicant and its legal and patent attorney representatives to return all evidence obtained through execution of the measures, irrespective of form, to destroy copies including all copies of the English-language product brochure obtained in the course of the inspection and evidence-preservation exercise and to irreversibly delete all digital copies of the expert’s detailed description. The court described these measures as serving to eliminate the consequences of the earlier order. This means, where evidence has already been extracted under an ex parte measure that later falls away for failure to sue on the merits in time, the court may restore the procedural balance not only by revoking the original order, but also by compelling a form of evidential rollback.
Regarding the respondent’s request for “appropriate compensation” the court accepted in principle that such relief may have its basis in Article 60(9) UPCA in conjunction with Rule 198.2 RoP. Those provisions allow the court, where an order for preservation of evidence is revoked, to order the applicant to provide the respondent with appropriate compensation for damage caused by those measures. However, the court rejected the request on the facts before it. In its view, the respondent had failed to identify any concrete compensable damage within the meaning of those provisions. Instead, the respondent had referred to costs allegedly incurred during the evidence-preservation proceedings, namely lawyer, patent attorney and translation costs. The court held that such items are not “damage” in the relevant sense, but procedural costs to be pursued under the UPC’s costs regime, specifically under Rules 151 et seq. RoP.
The Order highlights three key takeaways for UPC practice: (1) applicants seeking (ex parte) inspection or evidence-preservation measures under Article 60 UPCA must be prepared to promptly pursue the merits, as failure to file the main action within the prescribed period can result not only in revocation of the measures but (2) in the loss of all evidence obtained. (3) Finally, the court draws a clear distinction between compensable “damage” under Article 60(9) UPCA and recoverable procedural costs, meaning that compensation requires substantiated proof of actual harm caused by the measures, whereas legal costs must be pursued separately under the UPC costs regime.
[1] https://www.unifiedpatentcourt.org/en/node/183171
[2] https://www.unifiedpatentcourt.org/en/node/149214