Short Summary
The Unified Patent Court's Local Division in Copenhagen confirmed its ex parte order of August 26, 2024, granting Hybridgenerator ApS's application for the preservation of evidence and inspection of property under Article 60 of the UPC Agreement and Rule 196 of the Rules of Procedure, concerning European Patent No. 4 238 202 B1. The respondents (collectively 'rekvisiti') had sought review of the order under Article 60(6) of the UPC Agreement, primarily arguing that the patent was invalid, that the evidence did not support infringement, and that certain parties should not have been included. The court found that Hybridgenerator had presented reasonably available evidence supporting a plausible infringement claim and that the inclusion of all four companies and the individual was justified given the close intermingling of the parties.
Detailed Summary
This case concerns an application for review of an ex parte order for preservation of evidence (bevissikring) issued by the Local Division of the Unified Patent Court in Copenhagen on August 26, 2024, at the request of Hybridgenerator ApS (the 'rekvirent'). The order concerned European Patent No. 4 238 202 B1 (the 'Stridspatentet') and was executed by the Enforcement Court in Svendborg, Denmark, on August 30, 2024. The respondents (collectively 'rekvisiti') — HGSystem ApS, Rune Eilertsen, Infotech Holding ApS, Infotech Concept ApS, and HGSystem Holding ApS — requested review of the order on September 30, 2024, under Rule 197(3) of the Rules of Procedure.
The respondents argued principally that the order should be set aside, or alternatively modified. Their main contentions included: (1) many of the submitted exhibits related to activities in Norway, where the patent was not validated and where the respondents had a specific agreement allowing competitive business; (2) certain exhibits were intended to discredit Rune Eilertsen rather than establish infringement; (3) Hybridgenerator's claim chart was a party submission rather than real evidence and contained errors, failing to demonstrate that all claim features were present in the alleged infringing products (MPU 1000, MPU 2000, and MPU 3000); (4) the patent lacked priority over prior art; (5) the patent was invalid for added subject-matter and insufficiency; and (6) the other companies and Rune Eilertsen personally should not have been included in the order.
Hybridgenerator argued principally that the order should be maintained, or alternatively modified to a specified extent. The court, presided over by single legally qualified judge Peter Juul Agergaard, held a hearing on November 28, 2024, and delivered its decision on December 19, 2024.
The court found that Hybridgenerator had presented reasonably available evidence to support that the patent had been or would be infringed. The court noted that the Stridspatentet was not validated in Norway and that Norwegian activities were irrelevant, but found that the evidence regarding activities in Denmark and other relevant territories was sufficient. The court rejected the respondents' arguments regarding the claim chart, finding that it was not merely speculation but provided a reasoned basis for the alleged infringement. The court also found that the respondents' arguments regarding priority, added subject-matter, and insufficiency were better suited for the main proceedings rather than the review of the evidence preservation order.
Regarding the inclusion of all parties, the court found that Infotech Concept ApS was the registrant of the domain hgsystem.dk, and that all four companies shared addresses or close connections. The court found that the social media posts from Rune Eilertsen supported a close intermingling of the parties, making it impossible to determine in advance which party held potentially relevant evidence. The court therefore concluded that Hybridgenerator had adequately justified the inclusion of all parties and that this was not disproportionate.
The court confirmed the order of August 26, 2024, ordered that the IT expert's report be released to the parties' representatives, imposed a confidentiality obligation on the representatives regarding business secrets and confidential information, and restricted the use of the report to evidence in the main case. The decision on costs was postponed until the main proceedings. The respondents were given 15 days from notification of the order to appeal to the Court of Appeal under Article 73 of the UPC Agreement and Rule 220 of the Rules of Procedure.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Copenhagen (DK) Local Division. Understanding the court's reasoning in HGSystem ApS, Rune Eilertsen, Infotech Holding ApS, Infotech Concept ApS, HGSystem Holding ApS vs Hybridgenerator ApS is valuable context for structuring arguments or assessing risk in similar proceedings.
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