Van Loon v Inverquark (UPC_CFI_1325/2025)
Decision date:
30 October 2025
Osborne Clarke summary
- This decision was an ex parte order for inspection and preservation of evidence.
- The application was made by Van Loon in the Düsseldorf LD against Inverquark, a specialist wholesaler of pool and garden technology. Inverquark exhibited a product called "InverJet" at the Aquanale trade fair in Cologne between 28 and 31 October 2025, which Van Loon suspected of infringing its unitary patent for a counter-current swimming device. Van Loon filed its application on 28 October 2025.
- The decision was issued 2 days later. The court granted an ex parte order that an expert be appointed to inspect Inverquark's allegedly infringing product, secure evidence and submit a written report on whether the product made use of the technical teaching of the patent.
- The court was satisfied that Van Loon had credibly demonstrated that the patent might be infringed. Van Loon had explained why it considered that all features of the patent were potentially realised in the "InverJet" product, relying on photographs showing the external structure and explaining why it believed the features were met. It had also explained that some features (such as interior aspects and dimensions) were dependent on inspection. The court considered that, due to the special circumstances in the relevant market, it had no other option for gathering evidence and required an inspection of the product.
- The court held that the inspection and preservation of evidence was urgent. The order was issued ex parte in accordance with Rules 192.3 and 197 RoP. Otherwise, there would be a demonstrable risk that evidence would be destroyed or would no longer be available for other reasons.
- There was a serious risk that the product would be removed from the exhibition grounds at short notice. In that case, it would be "almost impossible" for Van Loon to obtain evidence of the alleged infringement. Although Van Loon had been able to view the product after it had been offered to one of its own customers, it was not possible to conduct a test run, take detailed measurements, or disassemble it.
- The court considered a protective letter filed by Inverquark. It had filed this after receiving a warning letter from Van Loon's exclusive licensee a few days before the trade fair. However, it was primarily directed against the granting of provisional measures and the court considered it did not undermine Van Loon's case for inspection and preservation. Indeed, the fact that Inverquark disputed the presence of certain features that could not be determined externally demonstrated the necessity of an inspection.
- The protective letter also did not preclude an ex parte order. It did not contain any specific reasons against issuing an ex parte order for inspection and examination, focussing instead on preventing ex parte provisional measures.
- The court noted that validity was not to be examined in inspection and preservation proceedings unless there were "clear indications" that validity was in doubt (for example, a previous negative decision on validity), citing the Court of Appeal's decision in Valinea v Tiru & Maguin. The fact that Inverquark had questioned validity in correspondence and in the protective letter was not sufficient.
- The court held that Van Loon's interests outweighed those of Inverquark. It considered that the measures did not place an unreasonable burden on Inverquark, and its confidentiality concerns were adequately addressed by confidentiality provisions within the order.
- The court did not order security. The default position is that security should be ordered for ex parte orders to preserve evidence, but it considered that special circumstances for an exemption under Rule 196.6 RoP were present. Inverquark would still be able to offer and distribute its product and it would suffer "minor damage at most". Taking into account the short duration of the trade fair, ordering security would unreasonably delay the order.
Issue
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