Article 7(1) of IPRED provides for the possibility, in appropriate cases, to issue measures to preserve evidence without the other party having been heard (i.e. ex parte), in particular where any delay is likely to cause irreparable harm to the rightholder or where there is a demonstrable risk of evidence being destroyed.
Similarly, as provided in Article 9(4) of IPRED provisional and precautionary measures may be issued ex parte in particular where any delay would cause irreparable harm to the rightholder. In such cases, due to the urgent nature and/or the need not to inform the defendant in advance, the decision on the award of the measures is taken on a unilateral basis without prior notification and hearing. Thus, it is without the defendant being given the chance to submit arguments in its defence, even if the defendant may suffer from the possible severity of the impact of the measure awarded.
Articles 7 and 9 provide for a number of safeguards, notably the fact that such ex parte injunctions can be granted only on specific grounds, must be immediately communicated to the defendant after their execution and are subject to judicial review ex post, where the defendant can be heard. Nonetheless, the fact remains (de) that such ex parte measures significantly affect the defendant’s fundamental right to be heard and defend himself in court, which is part of the fundamental right to a fair trial.
Limitations to the right to be heard should therefore in principle only be imposed under these articles while providing for the necessary safeguards and to the extent that such limitations are necessary to ensure the rights to protection of intellectual property and to effective judicial protection of the applicant, which are also fundamental rights guaranteed under the Charter.
In order to achieve a fair balance between these conflicting interests and fundamental rights, some Member States (Belgium, France, Germany, the Netherlands and Spain) and Rule 207 of the Rules of Procedure of the Unified Patent Court provide for the instrument of protective brief, referred to also as protective letter or protective writ.
With a protective brief, a defendant fearing to be sued for an IPR infringement (for instance, because it has received a warning letter from the rightholder) informs the competent judicial authorities in advance, (i.e. even before an application has been made), why the potential infringement claim is, according to the defendant, not founded. The main purpose of the protective brief is to provide the judicial authorities with as much relevant information as possible, without hearing the defendants once the application for a preliminary injunction has been made, before taking a decision on that application.
Although not expressly provided for in IPRED, the instrument of a protective brief can be seen as a good instrument to help balance, in a fair and proportionate manner, the various conflicting interests and fundamental rights at issue in relation to the possibility of issuing ex parte measures set out in Articles 7(1) and 9(4) of IPRED.