As Europe settles into the new era of the Unified Patent Court (UPC), one thing is becoming strikingly clear: businesses that rely on innovation now have fast and relevant precise tools to act when they suspect their patent rights are being infringed. However, a crucial issue during proceedings of patent infringement is evidence. With that in mind, saisie-contrefaçon (a practice common in French national litigation) and inspections are effective tools for patent holders to obtain evidence before launching an action. The UPC includes the possibility to request and execute an order for preservation of evidence, also referred to as a saisie (or an order to preserve evidence). Another tool is the inspection.
Why evidence preservation matters?
Obtained evidence is an enormous advantage for patent owners who often face a race against time. In fast moving sectors, evidence can disappear, products evolve, booths get dismantled at trade fairs, and digital data gets deleted with a single click. That’s why the UPC allows applicants to request:
- Detailed descriptions of products or processes with or without the taking of samples
- Seizure of allegedly infringing products
- Inspection of premises
- Preservation of digital evidence
This list is not limiting and the Court ordering a saisie may order any other measure necessary for collecting and preserving relevant evidence: the order of preserving evidence can thus also include instructions in order to, for example, ask specific questions to relevant persons or representatives, to dismantle an infringing product for accessing a specific part and to study it, to carry out experiments, tests or even to make a sample of the infringing product, etc.
These tools enhance the efficiency of proceedings before the UPC by giving patent holders a practical means of obtaining decisive evidence at an early stage, thus strengthening their position and allowing infringement actions to be brought on a more informed and effective basis.
Saisie vs inspection—understanding the tools
Both serve to protect evidence, but saisie has broader reach and more procedural force:
- Saisie: A robust toolkit that can include descriptions, physical seizure, and digital access.
- Inspection: A more site focused look at products, processes, or premises.
In practice, saisies are being used frequently—particularly in situations like trade fairs, where time is short and products may only be on display for a matter of hours.
A high grant rate—but with strict duties
One of the most notable trends? The UPC is granting a high proportion of ex parte orders for preserving evidence. That means applicants for those orders (typically patent proprietors seeking evidence of infringement) often benefit from the element of surprise.
But with that comes responsibility.
When a defendant is not being heard, the applicant’s duty of disclosure becomes absolute. Even small omissions can lead to an order being annulled retroactively. Several court decisions underscore that the Court must be able to rely entirely on the applicant’s statements when the process isn’t adversarial.
What the Court looks for: The “plausibility” standard
At this preliminary stage, the applicant is not required to establish infringement conclusively, since requiring full proof would deprive the measure of much of its practical value. The purpose of an application for preservation of evidence is precisely to enable the patent proprietor to secure material that may confirm the alleged infringement before that material disappears or becomes inaccessible. The Court therefore applies a lower threshold: the applicant must present a sufficiently credible case showing that infringement is plausible and that there is a legitimate need to preserve evidence without delay.
In practice, this means that the applicant must rely on evidence that can be obtained through ordinary channels, such as publicly available information, market observations, product documentation, or other accessible factual indications. On that basis, the applicant must put forward a coherent and persuasive account explaining why the product or process at issue is likely to fall within the scope of the patent. The Court is not expected, at this stage, to carry out a full infringement analysis or to resolve the dispute on the merits; it merely assesses whether the request is grounded in sufficiently concrete and credible indications to justify the preservation of evidence.
The Court isn’t re-litigating patent validity here, nor is it conducting a full infringement assessment. It’s simply determining whether the applicant’s concerns are reasonable and whether acting now makes sense.
How these measures are executed
Once the order has been granted, its execution is tightly controlled by the Court. The measures are not carried out by the applicant itself, but by a person appointed or authorised for that purpose, typically an independent expert or another independent professional acting under the terms of the order.
In the case of an inspection of premises, the UPC framework expressly requires the inspection to be conducted by a person appointed by the Court, and the applicant may not attend in person. The applicant may, however, be represented by an independent professional practitioner identified in the order. Depending on the circumstances, the execution may also involve practical assistance from a bailiff, a technical specialist or other professionals needed to implement the measures effectively and securely.
The order must also define the place of execution and the permitted measures with sufficient precision. The UPC has shown little tolerance for overly broad wording or open-ended authorisations, and requires the requested scope to remain proportionate to the purpose of preserving relevant evidence. During execution, particular attention must be paid to confidential business information, since the collection of technical or commercial material may expose trade secrets or other sensitive data. The measures normally end in a written report describing what was observed, seized or documented, and that report then becomes central to the applicant’s decision whether to commence proceedings on the merits. The developing case law also shows that access to the report may itself be subject to confidentiality safeguards, including restrictions on disclosure to named persons only, so that execution combines evidential efficiency with procedural protection for the party targeted by the order.
Strict timelines to move to a full case
To keep the process fair, an applicant must then start main proceedings within 31 calendar days or 20 working days from when the evidence becomes available. If they fail to move forward, the measures automatically lapse. This keeps the system from being used tactically without genuine intent to litigate.
What it all means for businesses in Europe
Put simply, the UPC is turning evidence preservation into a much more accessible and strategic part of patent enforcement. Whether dealing with a product demo at an international expo, a complex industrial installation, or a digital platform, patent owners now have a clearly defined and effective route to secure the proof they need—fast. The combination of a lighter evidentiary threshold, quick decisions, and powerful enforcement tools makes the UPC one of the most dynamic new legal bodies in Europe. For businesses, innovators, and patent owners, that’s a game changer.
Marie-Claude Pellegrini
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Withers & Rogers LLP July 2026
