- 76 -
the person may be a bailiff or assisted by a bailiff. In no circumstances may an employee or director of
the applicant be present at the execution of the measures.
6. The Court may order the applicant to provide adequate security for the legal costs and other expenses
and compensation for any injury incurred or likely to be incurred by the defendant which the applicant
may be liable to bear. The Court shall do so where the order to preserve evidence was made without the
defendant having been heard, unless there are special circumstances not to do so. The Court shall decide
whether it is appropriate to order the security by deposit or bank guarantee.
7. The order to preserve evidence shall indicate that an appeal may be lodged in accordance with
Article 73 of the Agreement and Rule 220.1.
Relation with Agreement: Article 60(1)-(4)
Rule 197 – Order to preserve evidence without hearing the defendant
1. The Court may order measures to preserve evidence [Rule 196.1] without the defendant having been
heard, in particular where any delay is likely to cause irreparable harm to the applicant or where there
is a demonstrable risk of evidence being destroyed or otherwise ceasing to be available.
2. Where measures to preserve evidence are ordered without the defendant having been heard, Rule 195
shall apply mutatis mutandis to the oral hearing without the presence of the defendant. In such cases,
the defendant shall be given notice, immediately at the time of the execution of the measures.
3. Within 30 days after the execution of the measures, the defendant may request a review of the order
to preserve evidence. The Request for review shall set out:
(a) the reasons why the order to preserve evidence shall be revoked or modified; and
(b) the facts and evidence relied on.
4. The Court shall order an oral hearing to review the order without delay. Rule 195 shall apply. The
Court may modify, revoke or confirm the order. In case the order is modified or revoked the Court shall
oblige the persons to whom confidential information has been disclosed to keep this information
confidential [Rule 196.1].
Relation with Agreement: Article 60(6)
Rule 198 – Revocation of an order to preserve evidence
1. The Court shall ensure that an order to preserve evidence is revoked or otherwise cease to have effect,
upon request of the defendant, without prejudice to the damages which may be claimed, if, within a time
period not exceeding 31 calendar days or 20 working days, whichever is the longer, from the date
specified in the Court’s order with due account to the date where the Report referred to in Rule 196.4
shall be presented, the applicant does not start proceedings on the merits of the case before the Court.
2. Where the measures to preserve evidence are revoked, or where they lapse due to any act or omission
by the applicant, or where it is subsequently found that there has been no infringement or threat of
infringement of the patent, the Court may order the applicant, upon request of the defendant, to provide
the defendant appropriate compensation for any injury caused by those measures [Rule 354.2].
Relation with Agreement: Article 60(8) and (9)