On 2 July 2026 the Court of Appeal of the Unified Patent Court (UPC) refused Guardant Health a preliminary injunction against four Sophia Genetics companies because Guardant waited too long: nearly three months passed, without a documented explanation, between the date it could have known of the infringement in UPC territory and the start of drafting its application. The order (UPC_CoA_19/2026) sets out how UPC preliminary injunction urgency is measured. It matters to any patent holder that may need fast relief in Europe.
Key takeaways
- The urgency clock runs separately for each patent. Waiting to assemble every patent in one application can make the delay unreasonable.
- If a document shows infringement of one patent, the holder cannot ignore what it shows about its other patents.
- The applicant must prove, with dates and evidence, that it acted without undue delay.
- Guardant was ordered to pay interim costs of EUR 300,000 for first instance and EUR 100,000 for the appeal.
What did the UPC Court of Appeal decide in Guardant v Sophia Genetics?
Guardant holds European patent EP 3 443 066, with unitary effect, on a method for detecting colorectal, ovarian, lung or pancreatic cancer by sequencing circulating cell-free DNA. It accused Sophia’s “MSK-ACCESS powered with SOPHiA DDM” test. The Paris Local Division rejected the application on 23 January 2026, holding the patent likely invalid for added matter. On appeal, the Court disagreed on added matter, but dismissed the appeal anyway for lack of urgency (order of 2 July 2026).
| Date | Event, as recorded in the order |
|---|---|
| 1 May 2025 | Date by which the Court assumed Guardant knew the technical details, from Sophia’s user manual |
| 15 May 2025 | Latest date by which, with due diligence, Guardant could have known of Sophia’s activities in UPC territory, Spain and Switzerland |
| 27 May 2025 | UK warning letter on other patents, citing the same user manual |
| 14 July 2025 | Guardant starts UK proceedings |
| 13 August 2025 | Date Guardant said it had enough knowledge of activities in UPC territory |
| 29 August 2025 | Application for provisional measures filed at the Paris Local Division, on four patents |
| 2 July 2026 | Court of Appeal dismisses the appeal for lack of urgency |
How does the UPC measure preliminary injunction urgency?
Under Rule 211.4 of the UPC Rules of Procedure, the court considers any unreasonable delay in seeking provisional measures. The Court of Appeal repeated that the clock starts when the applicant knew, or should have known, the facts and evidence needed for an application with a reasonable prospect of success, and that the burden of proving diligence lies on the applicant. Its headnotes add:
- A holder is not obliged to assert all its patents in one application. Delaying until it has evidence for every patent may be unreasonable.
- A holder that reads a document showing infringement of one patent “must not turn a blind eye” to what it shows about others.
- There is no general duty to monitor the market, but once specific circumstances suggest infringement, the holder must investigate with due diligence.
- For a company, what counts is when someone able to act on it or report it learns of the infringement, for example the legal department, a senior sales manager or a mystery shopper.
- Waiting a reasonable time for a reply to a warning letter is acceptable, but only for the patents the letter covers.
On the facts, the public information Guardant relied on could have been checked in about two weeks, and claims of technical complexity carried no weight because Guardant never said when its analysis started, for which patent or why it took so long.
Why the costs matter as much as the injunction
The Paris Local Division had ordered Guardant to pay EUR 400,000 in interim costs. The Court of Appeal reduced that to EUR 300,000, half of the EUR 600,000 ceiling for a case valued at EUR 6 million, and added EUR 100,000 in interim costs for the appeal, half of the EUR 200,000 ceiling for an appeal valued at EUR 1.8 million. Guardant bears the costs of both instances: a failed application is expensive even before any ruling on the merits.
The order also confirms the UPC’s reach: with three defendants domiciled in UPC states, it accepted jurisdiction under the Brussels I bis Regulation over acts in Spain and Switzerland, which are not UPC members.
What this means for your business
- Record the date anyone with responsibility for IP first sees evidence of possible infringement, and treat it as day one for every patent the evidence touches.
- Prioritise: file first on the patents you can already support, and add others in separate applications.
- Document each step of the technical analysis: start date, patent, claim feature, expert used and duration.
- Coordinate parallel actions: a warning letter or UK claim on some patents does not stop the UPC clock on others.
For companies enforcing patents across Europe, Latin America and Africa, our team for patent enforcement and IP litigation coordination builds that timeline from the first alert, working with European patent attorneys and UPC representatives.
Where patent holders get this wrong
- Bundling patents to file one “strong” application. The Court of Appeal treated the wait itself as evidence that the matter was not urgent.
- Undocumented investigations. Statements that analysis “took several weeks” carried no weight without dates.
- Waiting for a reply to a warning letter that did not cover the patent in suit. The Court gave that wait no weight.
- Forgetting the costs exposure, which reached EUR 400,000 in interim awards here.
Frequently asked questions
How long can a patent holder wait before seeking a UPC preliminary injunction?
There is no fixed deadline. Rule 211.4 of the Rules of Procedure looks at unreasonable delay in the circumstances of each case. In Guardant v Sophia, nearly three months without a documented explanation, after the holder could have known of the infringement, was too long and the application failed.
Must all infringed patents be asserted in one UPC application?
No. The Court of Appeal said there is no obligation to assert all patents together, and separate applications filed weeks apart are compatible with the UPC rules. Delaying an application on one patent until evidence is ready for all of them may, however, be treated as an unreasonable delay.
What costs can a failed UPC application for provisional measures bring?
The unsuccessful party generally bears the winner’s reasonable costs, up to ceilings set by value. In this case the Court of Appeal ordered interim awards of EUR 300,000 for first instance and EUR 100,000 for the appeal, set at half of the applicable ceilings.
Can IP Global Guard help us prepare a UPC preliminary injunction?
Yes. We coordinate the evidence timeline, technical analysis and filing strategy from the first alert, working with European patent attorneys and qualified UPC representatives, and align it with action in Spain, the UK, Latin America and Africa from a single point of contact.
How IP Global Guard can help you act in time
Guardant v Sophia shows that urgency at the UPC is lost in the weeks after the first alert. IP Global Guard, the IP services line of META Channel Corporation Limited, coordinates enforcement with one strategy and one billing relationship across more than 25 jurisdictions, including patent protection in Europe and beyond; see our coverage across the corridor.
If you have spotted a product that may infringe your patents, share the evidence and the date you first saw it. We will assess urgency patent by patent and plan the next steps. Talk to our patent enforcement team.
This article is general information, not legal advice, and reflects the position on its date of publication.
