Telefonaktiebolaget LM Ericsson v. ASUSTeK Computer Inc. and Arvato Netherlands B.V.

This order was issued by the Court of First Instance of the Milan Local Division of the Unified Patent Court (UPC) on 17 June 2026 in case UPC CFI no. 1130/2026, related to the main proceedings UPC CFI no. 319/2024 (infringement) and no. 728/2024 (counterclaim for revocation). The applicant, Telefonaktiebolaget LM Ericsson, proprietor of European Patent EP 3 076 673 B1 relating to decoding and encoding of pictures of a video sequence (HEVC/H.265 standard), filed an application for provisional measures on 1 April 2026, after the main proceedings had commenced on 14 June 2024. The defendants were ASUSTeK Computer Inc., a Taiwan-based manufacturer of laptops, desktops, and chromebook computers implementing the HEVC/H.265 standard, and Arvato Netherlands B.V.

Ericsson advanced three main grounds for urgency: (i) the delay of the main proceedings, with the oral hearing scheduled for 24-25 September 2026, more than two years and three months after commencement; (ii) the recent outcomes of two German national proceedings against ASUSTeK (Nokia v. ASUSTeK, Landgericht München, 22 January 2026, and Wilus v. ASUSTeK, Landgericht München, 8 January 2026), in which ASUSTeK was ordered to pay damages but failed to provide adequate security and was found not to meet the standard of a willing licensee; and (iii) ASUSTeK's announcement on 17 March 2026 of new allegedly infringing products including the 2026 ROG Strix G16, ROG Strix G18, ASUS TUF Gaming A16, and ASUS TUF Gaming F16. Ericsson also requested that the defendants be ordered to provide guarantees for the recovery of damages.

The defendants contested the admissibility and merits of the application, arguing that the conditions for provisional measures were not met and that the request for guarantees was inadmissible.

The Court first addressed admissibility, holding that applications for provisional measures can be submitted at any stage of the main proceedings, including towards the end, since there is no legal limitation in R. 206.1 RoP. However, the Court established important principles regarding the substantive assessment of such late-stage applications. When a request for interim relief is filed after the main proceedings have started, the requirements of urgency and balancing of interests take on more specific meaning. The applicant must highlight any new or escalating risk that has arisen during the ongoing proceedings and explain why these new facts alter the existing situation to such an extent that a provisional measure is necessary and that it would not be justified to wait for a decision on the merits. The applicant cannot simply rely on a continuation of the defendant's unlawful conduct; instead, there is a specific burden to demonstrate new, different, and supervening factual circumstances unequivocally indicating an objective deterioration of the existing situation. A mere increase in financial loss is insufficient, as temporal aggravation of economic damage during proceedings is inherent when patent infringement continues until a final order is issued.

Applying these principles, the Court found that Ericsson's arguments did not establish urgency. The delay of the main proceedings was attributable to the ordinary course of litigation and did not constitute a new or supervening circumstance. The two German judgments were first-instance decisions that had been appealed, merely ordered general damages without quantifying a specific sum, and did not demonstrate any deterioration in ASUSTeK's financial position since the proceedings began. Ericsson had been aware since the start of the proceedings that ASUSTeK, as a Taiwan-based company, had no substantial assets in the EU. The launch of new products, while relevant to the merits, did not constitute a deterioration of the existing situation sufficient to justify interim relief. The Court also noted that ASUSTeK had accepted jurisdiction, raised no dilatory preliminary objections, and expressed interest in obtaining a RAND license should the patent be found valid and infringed.

Regarding Ericsson's request for guarantees for the recovery of damages, the Court found that this did not fall within the scope of the relevant provisions (Art. 60(7), 69(4), 82 UPCA and corresponding Rules of Procedure). While the request could potentially fall within Art. 62(3) UPCA and R. 211.1(c) RoP regarding precautionary seizure, the Court found that Ericsson had not provided evidence casting doubt on ASUSTeK's solvency or demonstrating any deterioration in the defendant's financial position since the proceedings began.

The Court concluded that the application for provisional measures was dismissed for lack of urgency, noting that the conditions for granting preliminary measures are cumulative, and failure to meet one condition renders the claims unfounded without the need to assess other requirements. The Court also found no need to adjudicate on ASUSTeK's application under R. 262.2 RoP regarding public access to information, postponing any decision until access is actually requested. Costs were reserved for determination in the main proceedings, and the parties were given fifteen days to lodge an appeal.