Legal and Tech – Landmark Decisions in Patent Law in Europe & Germany

(last updated 2026-03-31)

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UPC_CFI_360/2026; 2026-3-31

ORIGINAL-HEADNOTE:
1. Given that the current deadlines would deviate by only 20 days, the defendants’ request for alignment of the time limit for filing the Statement of Defence is reasonable.
2. While a claimant is not obliged to proactively arrange payment for service in the U.S., it bears the risk of deviating service dates if it waited to arrange payment for service in the U.S. in due course after the request of the sub-registry.

PATENTOWNER/-APPLICANT: FusionLayer Oy; Nixu FL IP Protection LLC

OPPOSING-PARTY: Infoblox Inc.; Infoblox Germany GmbH; Nomios Germany GmbH

LEGAL PROVISIONS: R. 9.3(a) RoP

ORIGINAL-KEYWORDS: Alignment of deadlines; R. 9.3(a) RoP

AI-FEEDBACK:
– The Court treats deadline alignment as a case-management measure that may be justified when it simplifies the written procedure and causes only a limited extension.
– A claimant is not required to prepay foreign-service costs before being asked, but once the Registry requests payment, delay in arranging it remains the claimant’s procedural risk.
– Example: the two German defendants were served on 22 February 2026, while Infoblox Inc. in the United States was served on 11 March 2026 after payment was arranged; the Court aligned the defence deadlines despite the resulting 20-day difference.
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#actionable UPC_CoA_899/2025; 2026-3-30

ORIGINAL-HEADNOTE:
1. By not contesting the jurisdiction and competence of the Court in First Instance, the Appellant (Defendant in first instance) has in principle foregone this opportunity on appeal and cannot raise the alleged lack of jurisdiction and competence as a ground for overturning the impugned order (Art. 26(1) Brussels I Recast and R. 19.7 RoP).
2. By manufacturing, preparing and selling allegedly infringing products intended for the Contracting Member States of the UPC, there is a likelihood of damage occurring in the UPC territory arising from the possibility of third parties obtaining these products in the Contracting Member States, even if the acts causing the damage are performed by the Defendant outside the Contracting Member States. This provides basis for jurisdiction of the UPC pursuant to Art. 71b(2) in conjunction with Art. 7(2) Brussels I Recast.
3. Appellants must demonstrate that any alleged procedural or substantive errors by the Court of First Instance, such as those in relation to the procedural schedule applied in first instance, have resulted in an incorrect decision by the Court of First Instance. In the absence of such a showing, the alleged errors cannot result in setting aside the impugned order.

PATENTOWNER/-APPLICANT: Abbott Diabetes Care Inc.

OPPOSING-PARTY: Sinocare Inc.; A. Menarini Diagnostics s.r.l.

LEGAL PROVISIONS: Art. 26(1), Art. 71b(2) and Art. 7(2) Brussels I Recast; R. 19.7 RoP

ORIGINAL-KEYWORDS: Jurisdiction; Claim construction; Infringement; Validity (added matter, sufficiency, novelty and inventive step); Urgency, necessity and balance of interests

CITED DECISIONS: CJEU, C-170/12, Pickney v KDG Mediatech, UPC_CoA_188/2024, Aylo v Dish, UPC_CoA_317/2025, Barco v Yealink, UPC_CoA_335/2023, NanoString v 10x Genomics, UPC_CoA_1/2024, VusionGroup v Hanshow, UPC_CoA_768/2024, Insulet v EOFlow, UPC_CoA_646/2024, Meril v Edwards, UPC_CoA_405/2024, Alexion v Amgen, UPC_CoA_528/2024 and UPC_CoA_529/2024, Amgen v Sanofi/Regeneron, UPC_CoA_182/2024, Mammut v Ortovox, UPC_CoA_382/2024, Abbott v Sibio, UPC_CoA_446/2025, Boehringer Ingelheim v Zentiva, UPC_CoA_540/2024, Biolitec v Light Guide, UPC_CoA_523/2024, Sumi v Syngenta

AI-FEEDBACK:
– A defendant normally loses the ability to challenge jurisdiction on appeal if it did not contest jurisdiction and competence at first instance in the manner required by the applicable procedural rules.
– The UPC may have tort jurisdiction where products are manufactured or prepared outside UPC territory but are intended for UPC Contracting Member States and create a sufficiently concrete risk of damage there.
– An appellate complaint about scheduling or another procedural error is not enough by itself; the appellant must show that the alleged error affected the correctness of the outcome.
– Example: Sinocare manufactured the accused glucose-monitoring products in China for distribution into UPC markets through Menarini. The intended market and resulting risk of damage supported UPC jurisdiction even though relevant preparatory acts occurred outside UPC territory.
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UPC_CoA_12/2026; 2026-3-30

ORIGINAL-HEADNOTE:
A party or its representative may prepare a private transcript of an oral hearing, based on an audio recording pursuant to R. 115 RoP. When producing a private transcript, a party or its representative may obtain support of an assistant or support staff, such as a stenographer, working in the presence and under the supervision of the party and/or its representative.
Using a private transcript of an oral hearing in court proceedings between the parties outside the UPC that are related to proceedings before the UPC is permissible, provided specific conditions are met.

PATENTOWNER/-APPLICANT: InterDigital VC Holdings, Inc.; InterDigital Patent Holdings, Inc.; InterDigital Madison Patent Holdings, SAS; InterDigital CE Patent Holdings, SAS

OPPOSING-PARTY: Amazon.com, Inc.; Amazon Digital UK Limited; Amazon Europe Core S.à r.l.; Amazon EU S.à r.l.; Amazon Technologies, Inc.

LEGAL PROVISIONS: R. 115 RoP; Art. 45 UPCA; R. 262 RoP; R. 262A RoP; Regulation (EU) 2016/679

ORIGINAL-KEYWORDS: Rule 115 RoP; Transcript of the recording of an oral hearing

AI-FEEDBACK:
– R. 115 RoP restricts access to the Court’s audio recording, but it does not prevent an entitled party or representative from making a private written transcript.
– A stenographer or other assistant may help only in the presence and under the supervision of the party or representative, and any applicable confidentiality and data-protection duties remain binding.
– A private transcript may be used in related litigation outside the UPC if it is clearly identified as privately prepared, states whether it is complete, explains that the audio recording is the authoritative evidence, and notes that oral comments by the Court are provisional.
– Example: Amazon was allowed to listen to the recording of the Mannheim hearing at the Düsseldorf court premises and to use a professional transcriber under supervision, reversing the first-instance refusal.
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#actionable UPC_CFI_258/2025; 2026-3-30

ORIGINAL-HEADNOTE:
1. The revocation of an independent claim does not automatically affect the validity of unchallenged dependent claims, as the latter may possess autonomous patentability due to additional technical features.
2. Following the revocation of an independent claim, the patent proprietor may amend the patent to recast surviving dependent claims into independent form, provided the resulting configuration complies with the requirements of clarity and unity of invention.
3. As a general rule, the mere deletion of claims does not necessitate a consolidated document.
4. A subsequent request to amend the patent under Rule 30 (2) ‘RoP’ is not justified by a need to ‘react’ to a Court of Appeal decision in parallel proceedings if there is no direct logical nexus between the new procedural development therein and the proposed amendments or where the findings of that decision were based on arguments already pleaded and were thus foreseeable.

PATENTOWNER/-APPLICANT: Seoul Viosys Co., Ltd.

OPPOSING-PARTY: Emporia UK and Ireland Ltd.

LEGAL PROVISIONS: Art. 65 UPCA; R. 30.1 and R. 30.2 RoP; R. 50.2 RoP; Art. 123(2) EPC

ORIGINAL-KEYWORDS: Revocation; Added subject-matter; Application to amend the patent

CITED DECISIONS: UPC_CoA_335/2023, NanoString v 10x Genomics, UPC_CoA_457-458-464-530-532-533/2024 and UPC_CoA_21-27/2025, Meril v Edwards, UPC_CFI_278/2023, UPC_CFI_459/2023, UPC_CFI_311/2023, UPC_CFI_395/2023

AI-FEEDBACK:
– Dependent claims are not automatically invalid merely because the independent claim from which they formally depend has been revoked; their additional features may support separate patentability.
– A proprietor may reorganize surviving dependent claims as independent claims, but the amended claim set must still satisfy clarity and unity requirements.
– Later amendment requests require a genuine justification. A parallel appeal does not reopen the amendment window where the relevant objection was already foreseeable and the later decision has no direct logical connection to the proposed amendment.
– Example: after claims 1, 4, 5, 6 and 9 had already been revoked in parallel proceedings, the Court separately examined the remaining challenged claims and revoked claims 2, 3, 7, 8, 10 and 11; the proprietor’s later AR0b-AR10b requests were refused because they could have been filed earlier.
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#actionable UPC_CoA_898/2025; 2026-3-27

ORIGINAL-HEADNOTE:
1. Die Geltendmachung eines Patents in einer nicht eingetragenen Anspruchsfassung ist auch im Verfahren auf Anordnung einstweiliger Maßnahmen nicht von vornherein ausgeschlossen. Die Zulässigkeit hängt vielmehr von den konkreten Umständen des Einzelfalls ab, wobei der summarische Charakter des Verfahrens zu berücksichtigen ist.
2. Die Zulässigkeit neuer (Hilfs-)Anträge im Berufungsverfahren bestimmt sich nach R. 222 VerfO. Bei der Ermessensausübung gemäß R. 222.2 VerfO berücksichtigt das Gericht in einem Verfahren auf Anordnung einstweiliger Maßnahmen auch den summarischen Charakter des Verfahrens.
3. Die Verwendungsbestimmung gem. Art. 26 EPGÜ kann mit Hilfe objektiver Umstände ermittelt und angenommen werden, wenn objektive Umstände gegeben sind, die den hinreichend sicheren Schluss zulassen, dass das angebotene oder gelieferte Mittel von dem Angebotsempfänger oder dem Belieferten zur Benutzung der Erfindung verwendet werden soll.

AI-TRANSLATED-HEADNOTE:
1. The assertion of a patent in an unregistered version of the claims is not excluded from the outset, even in proceedings for provisional measures. Rather, admissibility depends on the specific circumstances of the individual case, taking into account the summary nature of the proceedings.
2. The admissibility of new auxiliary requests in appeal proceedings is governed by R. 222 RoP. When exercising its discretion under R. 222.2 RoP in proceedings for provisional measures, the Court also takes into account the summary nature of those proceedings.
3. Intended use within the meaning of Art. 26 UPCA may be established and inferred from objective circumstances where those circumstances permit the sufficiently certain conclusion that the means offered or supplied are intended by the offeree or recipient to be used for exploiting the invention.

PATENTOWNER/-APPLICANT: ONWARD Medical N.V.

OPPOSING-PARTY: Niche Biomedical, Inc.

LEGAL PROVISIONS: Art. 26 UPCA; R. 222 RoP; R. 263 RoP

ORIGINAL-KEYWORDS: Antrag auf Anordnung einstweiliger Maßnahmen; Geltendmachung einer nicht eingetragenen Anspruchsfassung; Zulässigkeit von Hilfsanträgen; mittelbare Patentbenutzung; Verwendungsbestimmung

AI-TRANSLATED-KEYWORDS: Application for provisional measures; Assertion of an unregistered version of the claims; Admissibility of auxiliary requests; Indirect patent infringement; Intended use

CITED DECISIONS: UPC_CoA_182/2024, Mammut v Ortovox, UPC_CoA_335/2023, NanoString v 10x Genomics, UPC_CoA_297/2024, SharkNinja v Dyson, UPC_CoA_768/2024, Insulet v EOFlow, UPC_CoA_446/2025, Boehringer v Zentiva, UPC_CoA_1/2024, VusionGroup v Hanshow, UPC_CoA_523/2024, Sumi v Syngenta, UPC_CoA_382/2024, UPC_CoA_464/2024 et al., Meril v Edwards

AI-FEEDBACK:
– A patent proprietor may, in exceptional circumstances, rely on a claim version that has not yet been entered in the register, including in provisional-measures proceedings; admissibility remains case-specific.
– New auxiliary requests on appeal are controlled by R. 222 RoP, and the Court’s discretion is informed by the accelerated and summary character of interim relief.
– For indirect infringement, intended use need not be proved by an express instruction; it may be inferred from objective facts that make the intended exploitation of the invention sufficiently certain.
– Example: ONWARD sought interim relief for a neuromodulation system and relied on amended claim formulations and indirect-use allegations. The Court assessed the procedural timing of those requests and whether the surrounding circumstances showed that Niche’s supplied means were intended for the patented use.
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UPC_CoA_409/2025, UPC_CoA_410/2025, UPC_CoA_420/2025; 2026-3-27

ORIGINAL-HEADNOTE:
(i) In UPC proceedings, which are organized by electronic procedures (Art. 44 UPCA) in which written pleadings and other documents shall be lodged in electronic form (R. 4.1 RoP), the first step to be taken by the UPC representative appointed by a Party is, using the served access code provided by the Registry to said Party, to log onto the case file in the Case Management System.
(ii) This first step enables the Party and its representative to have access to the file and to be aware of the case. The mere access to the file, before any active step or defense, is however not sufficient to establish a deliberate choice regarding the jurisdiction of the UPC. Another step is required in order to constitute the entering of an appearance within the meaning of Art. 26(1) Brussels Ia Regulation.
(iii) It is only when the defendant lodges its first statement, by filing a Preliminary objection pursuant to R. 19 RoP as to the issues listed in R. 19.1 and .4 RoP or, if not, the Statement of defence pursuant to R. 23 ff. RoP as to the substance of the dispute, that he will have deliberately chosen or contested the international jurisdiction of the court seized instead of the court which would normally have jurisdiction under the provisions laid down in Brussels Ia Regulation.

PATENTOWNER/-APPLICANT: Hurom Co., Ltd.

OPPOSING-PARTY: NUC Electronics Europe GmbH; NUC Electronics Co., Ltd.; WARMCOOK

LEGAL PROVISIONS: Art. 44 UPCA; R. 4.1 RoP; Art. 26(1) Brussels Ia Regulation; R. 19 RoP; R. 23 ff. RoP

ORIGINAL-KEYWORDS: Appeal; Claim construction; Scope of protection; International jurisdiction; Preliminary objection

CITED DECISIONS: CJEU, C-112/13, A v B, CJEU, C-433/16, BMW AG v Acacia, UPC_CoA_335/2023, NanoString v 10x Genomics

AI-FEEDBACK:
– Logging into the UPC Case Management System is an administrative prerequisite for accessing the electronic file, not a procedural submission accepting jurisdiction.
– A deliberate jurisdictional choice arises only when the defendant takes an active litigation step, normally its preliminary objection or, if none is filed, its first statement of defence.
– Therefore, the failure to file a preliminary objection under R. 19 RoP does not convert the earlier CMS login itself into an appearance under Art. 26(1) Brussels Ia Regulation.
– Example: NUC Korea accessed the electronic case file but first challenged the UPC’s jurisdiction over alleged acts in Turkey in its statement of defence. The Court held that the login alone did not establish tacit acceptance of jurisdiction.
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UPC_CoA_935/2025; 2026-3-24

ORIGINAL-HEADNOTE:
The principle that parties shall set out their full case as early as possible in the proceedings (RoP, Preamble, paragraph 7, last sentence) also applies to applications for suspensive effect. This means that an application for suspensive effect must set out all the reasons, facts, evidence and arguments on which the applicant wishes to rely. Any subsequent application for suspensive effect will be inadmissible, unless the applicant can demonstrate that the new application is based on submissions that could not reasonably have been made in the previous application.

PATENTOWNER/-APPLICANT: Amycel, LLC

OPPOSING-PARTY: Anonymised appellant

LEGAL PROVISIONS: R. 223 RoP; RoP Preamble, paragraph 7

ORIGINAL-KEYWORDS: Application for suspensive effect; R. 223 RoP

AI-FEEDBACK:
– The front-loaded nature of UPC procedure applies equally to requests for suspensive effect: the first application must contain the applicant’s complete case for a stay.
– A second stay application is not a routine opportunity to improve the first one. It is admissible only if it rests on material that could not reasonably have been presented earlier.
– Example: after a first request to suspend the recall, publication and interim-damages parts of a default judgment was rejected on 16 January 2026, the anonymised appellant filed a second request with its grounds of appeal. The Court treated the renewed request as inadmissible because the arguments could have been made in the first application.
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UPC_CFI_1963/2025; 2026-3-23

ORIGINAL-HEADNOTE:
La condition fixée par l’article 33.1(b) AJUB relative au lien commercial entre les défendeurs n’exige pas un lien commercial direct entre le défendeur dit d’ancrage et chacun des défendeurs mais un lien commercial entre tous les défendeurs.
La condition fixée par l’article 33.1(b) AJUB relative à « l’action porte sur la même contrefaçon », pour justifier la compétence interne d’une Division Locale en cas de pluralité de défendeurs, s’entend de la violation d’un même brevet par tous les défendeurs, et n’exige pas une identité des produits argués de contrefaçon, entre tous les défendeurs.

AI-TRANSLATED-HEADNOTE:
The condition in Article 33(1)(b) UPCA concerning a commercial relationship between the defendants does not require a direct commercial relationship between the anchor defendant and each individual defendant; it is sufficient that there is a commercial relationship among all defendants.
The condition in Article 33(1)(b) UPCA that the action concerns the same alleged infringement, which supports the internal competence of a Local Division where there are multiple defendants, means infringement of the same patent by all defendants and does not require the allegedly infringing products to be identical for every defendant.

PATENTOWNER/-APPLICANT: Valeo Systèmes d’Essuyage

OPPOSING-PARTY: Robert Bosch DOO Beograd; Robert Bosch France S.A.S.; Robert Bosch GmbH; Robert Bosch S.A.; Robert Bosch Produktie S.A.; Bosch Automotive Products (Changsha) Co., Ltd.

LEGAL PROVISIONS: Art. 33(1)(b) UPCA; R. 19 RoP; R. 333 RoP

ORIGINAL-KEYWORDS: Compétence interne de la JUB; Art. 33.1(b) AJUB; pluralité de défendeurs; double condition

AI-TRANSLATED-KEYWORDS: Internal competence of the UPC; Art. 33(1)(b) UPCA; Multiple defendants; Two cumulative conditions

AI-FEEDBACK:
– The commercial-relationship test under Art. 33(1)(b) UPCA is assessed across the defendant group; it does not require a separate direct link from the anchor defendant to every other defendant.
– The ‘same infringement’ condition focuses on alleged infringement of the same patent, not on complete identity of every accused product or model.
– Example: Valeo sued six Bosch companies before the Paris Local Division for alleged infringement of EP 4 144 599. The defendants marketed different accused products, but the common patent and the commercial links within the Bosch group were sufficient for the internal-competence analysis.
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UPC_CFI_1849/2025; 2026-3-20

ORIGINAL-HEADNOTE:
– When deciding on a request to change the language of the proceedings to the language of the patent on grounds of fairness, all relevant circumstances – in particular those related to the case and the respective position of the parties – shall be considered. If the outcome of balancing of interest is equal, the position of the defendant is the decisive factor.
– Efficient communication among defendants without the need to rely on translations, which represents a significant disadvantage in terms of costs and delays, is all the more important in the context of accelerated proceedings.

PATENTOWNER/-APPLICANT: Topsoe A/S

OPPOSING-PARTY: HyGear B.V.; SYPOX GmbH; Josef Kerner Energiewirtschafts GmbH; Technical University of Munich

LEGAL PROVISIONS: Art. 49(5) UPCA; R. 323 RoP

ORIGINAL-KEYWORDS: Change of the language of the proceedings; Art. 49(5) UPCA; R. 323 RoP

CITED DECISIONS: UPC_CoA_101/2024, UPC_CoA_354/2024, UPC_CoA_207/2024

AI-FEEDBACK:
– A fairness-based language change requires a balanced assessment of all case-specific circumstances, including the parties’ domicile, language abilities, size, procedural position and the practical burden of translation.
– Where the balance is otherwise equal, the defendant’s position prevails because the claimant selected the forum and initial language.
– Efficient communication is especially important in accelerated evidence-preservation proceedings involving several defendants.
– Example: Dutch defendant HyGear requested English, the language of EP 3 802 413, instead of German. Topsoe and SYPOX did not object, and using English reduced translation burdens among the international defendants in the accelerated inspection proceedings.
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UPC_CoA_930/2025; 2026-3-18

ORIGINAL-HEADNOTE:
Trade secrets or other confidential information lose their character as trade secrets or other confidential information if they are disclosed to the other party without an order pursuant to R. 262A RoP, or without any other restriction, for example an agreement between the parties or a voluntary undertaking. A request under R. 262.2 RoP does not automatically lead to protection against the other party disclosing the information.

PATENTOWNER/-APPLICANT: Insulet Corporation

OPPOSING-PARTY: EOFlow Co., Ltd.

LEGAL PROVISIONS: Art. 58 UPCA; R. 262.2 RoP; R. 262A RoP

ORIGINAL-KEYWORDS: R. 262 RoP; R. 262A RoP; Trade secrets

CITED DECISIONS: UPC_CoA_523/2024, UPC_CoA_9/2026, UPC_CoA_70/2025, Strabag v Swarco Futurit, UPC_CoA_699/2025, Kodak v Fujifilm, UPC_CoA_634/2024, Meril v Swat

AI-FEEDBACK:
– R. 262.2 RoP primarily concerns keeping information from the public register; it does not itself create an inter partes confidentiality obligation.
– Information disclosed freely to the opposing party may cease to qualify as secret or confidential unless disclosure is subject to a R. 262A order, a contractual restriction or a binding undertaking.
– Parties needing protection against use or disclosure by the opponent must seek the appropriate inter partes confidentiality regime before disclosure.
– Example: EOFlow submitted business arrangements, invoices, turnover figures, prices and partner emails in penalty proceedings. Because some information had been provided to Insulet without a R. 262A restriction, the later R. 262.2 request did not automatically prevent Insulet from disclosing it.
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UPC_CFI_1357/2025, UPC_CFI_0629/2026; 2026-3-18

ORIGINAL-HEADNOTE:
1. While the place of incorporation and registration of the claimant could be a relevant factor in assessing a request for security, its relevance should be determined by establishing whether “similar or identical” guarantees are in place for recognising and enforcing a UPC costs order in the foreign (non-EU/EEA) state (cf. Chint v JingAO headnotes). Therefore, this factor is relevant to the decision of whether or not to grant security, rather than to the decision on the amount of the security.
2. When arguing that the recognition and/or enforcement proceedings of UPC costs orders are “unduly burdensome” in the relevant state, based on the alleged duration of these proceedings, the Court requires a standard/reference to assess these arguments. Assessing whether the duration leads to proceedings to be “unduly” (i.e. “excessive” or “unreasonable”) burdensome implies a standard/reference in the sense of proceedings being not burdensome or “duly” (i.e. “acceptable” or “reasonable”) burdensome.
3. While the duration of the enforcement proceedings might, based on the provided evidence, not be sufficient to establish “undue burden” of enforcement, it could be taken into consideration when examining the facts and circumstances in the assessment of legitimate concerns regarding the recoverability of a costs order related to the claimant’s financial position.
4. When setting the security amount, consideration should be given to the costs likely to be incurred by introducing the counterclaim for revocation (if there is no indication that the defendants would have initiated a stand-alone revocation action had they not been confronted with the infringement action).
5. A witness statement that does not align with R. 175.2 RoP is not invalid, but this has an impact on the weight that should be attributed to such evidence.

PATENTOWNER/-APPLICANT: Establishment Labs S.A.

OPPOSING-PARTY: GC Aesthetics Parentco Limited; Nagor Limited; GC Aesthetics Management Limited; GC Aesthetics (Distribution) Limited; GC Aesthetics (France) SAS; Eurosilicone SAS; GC Aesthetics Italy S.r.l.; GC Aesthetics GmbH; GC Aesthetics Spain, S.L.U.; Global Consolidated Aesthetics (UK) Limited; GC Aesthetics Holdings Limited; GC Aesthetics Finance Limited; Romed N.V.

LEGAL PROVISIONS: Art. 69(1) UPCA; R. 158 RoP; R. 175.2 RoP; Art. 82 UPCA; R. 354 RoP

ORIGINAL-KEYWORDS: Request for Security (Art. 69(1) UPCA and R. 158 RoP); Witness Statement (R. 175.2 RoP)

CITED DECISIONS: UPC_CFI_548/2024, Aarke v Sodastream, UPC_CoA_596/2024, Suinno Mobile v Microsoft, UPC_CoA_890/2025, Syntorr v Arthrex, UPC_CoA_393/2025, AorticLab v Emboline, UPC_CoA_217/2024, UPC_CoA_219/2024 and UPC_CoA_221/2024, Audi v Network System Technologies, UPC_CoA_431/2025, Chint v JingAO, UPC_CoA_8/2025, Oerlikon v Bhagat, UPC_CoA_328/2024, Ballinno v Kinexon, UPC_CFI_164/2024, Microsoft v Suinno

AI-FEEDBACK:
– Incorporation outside the EU/EEA is relevant because it may affect recognition and enforcement of a future UPC costs order, but it does not mechanically determine either security or its amount.
– A party alleging that foreign enforcement is ‘unduly burdensome’ must provide a meaningful benchmark; duration figures alone are insufficient without showing why they are excessive.
– The amount may include likely costs of a counterclaim for revocation where that counterclaim is a practical consequence of the infringement action. Defective witness formalities reduce evidential weight rather than automatically invalidating the statement.
– Example: the defendants sought EUR 1.2 million because Establishment Labs was incorporated in Costa Rica and enforcement could require two stages. The Court found the evidence insufficient to prove undue burden but considered enforcement duration together with the claimant’s financial position and ordered security of EUR 600,000 within 21 days.
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UPC_CoA_904/2025, UPC_CoA_905/2025; 2026-3-16

ORIGINAL-HEADNOTE:
(i) The decision to deal with the Preliminary objection in the main proceedings may be taken either by the judge-rapporteur, as laid down in R. 20.2 RoP, or by the panel if the judge-rapporteur has decided to refer the matter to the panel to decide.
(ii) This follows from the first part of R. 102.1 RoP, according to which the judge-rapporteur may refer any matter to the panel for decision. Although this provision is provided for under Chapter 2 (R. 101 to 110 RoP) of the Rules of Procedure on the interim procedure, it shall apply mutatis mutandis to the written procedure where the judge-rapporteur, after his assignment to the case by the presiding judge pursuant to R. 18 RoP, is likewise tasked with the management of the case, including case management decisions or orders relating to a Preliminary objection.
(iii) This is further confirmed by R. 331 RoP on the responsibility for case management which provides that (R. 331.1 RoP) during the written procedure and the interim procedure, case management shall be the responsibility of the judge-rapporteur subject to Rules 102 and 333 and that (R. 331.2 RoP) the judge-rapporteur may refer a proposed order to the panel. Case management includes, inter alia, deciding the order in which issues are to be decided and ordering that issues or matters are to be heard together (R. 334(e) and (i) RoP).

PATENTOWNER/-APPLICANT: Sun Patent Trust

OPPOSING-PARTY: Vivo Mobile Communication Co., Ltd.; Vivo Tech GmbH; Vivo Mobile Communication Iberia SL

LEGAL PROVISIONS: Art. 32 UPCA; R. 18 RoP; R. 19 RoP; R. 20.2 RoP; R. 102.1 RoP; R. 331 RoP; R. 334(e) and (i) RoP

ORIGINAL-KEYWORDS: Competence of the Court; Preliminary objection; UPCA Art. 32; R. 19 and R. 20 RoP

CITED DECISIONS: UPC_CoA_265/2024, Volkswagen v Network System Technologies

AI-FEEDBACK:
– A preliminary objection need not always be finally resolved during the written phase; it may be deferred to the main proceedings as a case-management decision.
– Although R. 102.1 RoP is placed in the interim-procedure chapter, its referral mechanism also applies mutatis mutandis during the written procedure.
– The panel may therefore decide the issue after referral by the judge-rapporteur, consistent with the broader case-management powers in R. 331 and R. 334 RoP.
– Example: VIVO objected to the Paris Local Division’s competence over SUN PATENT’s infringement and FRAND claims. The panel was entitled to defer the admissibility issue concerning the requested FRAND determination to the main proceedings rather than deciding it immediately.
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UPC_CoA_3/2026; 2026-3-16

ORIGINAL-HEADNOTE:
Measures to preserve evidence without hearing the other party raise issues of due process. The applicant’s duty to disclose any material fact known to it which might influence the Court in deciding whether to make an order without hearing the defendant is there so that the Court can take due account of the interests of both parties, in spite of having to rely only on the facts presented in the Application. Representatives are generally obliged not to misrepresent facts (R. 284 RoP). R. 192.3 RoP imposes a heightened requirement where the applicant must disclose, and not leave out, any material facts that might be relevant for an ex parte order. This includes (for example) facts that may be relevant for the proportionality assessment.
Omissions and distorted accounts of material facts which might be of central importance for the Local Division’s assessment on whether to allow the request at all cannot be compensated or circumvented by later submissions in response to a Request for review.

PATENTOWNER/-APPLICANT: Ecovacs Robotics Co., Ltd.

OPPOSING-PARTY: Roborock (HK) Limited

LEGAL PROVISIONS: R. 192.3 RoP; R. 197 RoP; R. 284 RoP

ORIGINAL-KEYWORDS: Order for inspection without hearing the other party

CITED DECISIONS: UPC_CoA_239/2025, Centripetal v Palo Alto Networks, UPC_CoA_182/2024, Mammut v Ortovox, UPC_CoA_380/2025

AI-FEEDBACK:
– Ex parte evidence-preservation measures require strict candour because the Court initially hears only the applicant’s presentation of the facts.
– The applicant must disclose facts that could influence necessity, proportionality or whether an ex parte order should be made, including facts that weaken its asserted need for immediate inspection.
– Material omissions or a distorted presentation cannot normally be cured after execution by adding explanations in the review proceedings.
– Example: Ecovacs obtained an ex parte inspection of Roborock vacuum cleaners at IFA 2025 by arguing that evidence was otherwise unavailable and could disappear. The later review showed that test purchases and previously marketed products were relevant alternatives that had not been fairly presented, so the inspection order could not be preserved.
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#actionable UPC_CFI_722/2025; 2026-3-13

ORIGINAL-HEADNOTE:
1. Since the patent definitively and in its entirety has been revoked by the Opposition Division (ab initio), the claim for revocation of the patent has become devoid of purpose and there is no longer any need to adjudicate on it.
2. A request to only declare the revocation action devoid of purpose under the condition that the defendant makes the non-confidential undertaking that it will not enforce any divisional of the patent against the claimant, is outside the scope of R. 360 RoP. The claimant has not argued that a decision of the Court on the claim for revocation of the patent still serves any purpose. The revocation action is solely directed to the (now revoked) patent and not to any other claim scope. The mere fact that the patent has been revoked does not mean that every (within the rules applied for and granted) divisional will suffer the same fate.
3. The ceiling of recoverable costs is in principle based on a full procedure with a written phase, an interim phase and an oral phase. Given that claimant has already filed its written submissions and that most legal costs are front-loaded in this system, the Court will award claimant, as the successful party, 80% of the maximum recoverable costs.

PATENTOWNER/-APPLICANT: Spruce Biosciences, Inc.

OPPOSING-PARTY: Neurocrine Biosciences, Inc.

LEGAL PROVISIONS: R. 360 RoP; R. 295(m) RoP; Art. 69 UPCA; R. 150-153 RoP; R. 370.6 and R. 370.9(b)(i) RoP; R. 262 RoP

ORIGINAL-KEYWORDS: Disposal of action; Costs; Court fees; Confidentiality; Public access to the Register

CITED DECISIONS: UPC_CoA_328/2024, Ballinno v Kinexon, UPC_CoA_290/2024, Stäubli Tec-Systems, UPC_CFI_477/2025, UPC_CFI_1357/2025, UPC_CFI_249/2023

AI-FEEDBACK:
– Once the EPO Opposition Division has finally revoked the patent ab initio and no appeal will be filed, a parallel UPC revocation action has no remaining object.
– R. 360 RoP does not permit the Court to condition disposal of that action on an undertaking concerning separate divisional patents that were never the subject of the claim.
– Recoverable-cost ceilings assume a complete UPC action, but costs are heavily front-loaded. A claimant that completed the written phase may therefore recover a substantial percentage even where the case ends before the interim and oral phases.
– Example: Spruce confirmed that it would not appeal the EPO’s complete revocation of EP 3 784 233. The UPC disposed of Neurocrine’s revocation action and awarded Neurocrine 80% of the maximum recoverable costs because its written submissions had already been filed.
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UPC_CoA_789/2025, UPC_CoA_813/2025; 2026-3-6

ORIGINAL-HEADNOTE:
1. While the function of a structural element must be considered when interpreting a claim feature relating to such an element, the interpretation must likewise take into account the physical and spatial configuration of the elements as taught by the patent.
2. The requirement to limit an injunction to the specific infringing acts which the infringer has committed cannot be derived from Art. 62(1) and Art. 25(a) UPCA. As a general rule, the fact that a party has infringed the patent is sufficient to establish a risk of further infringement through other acts of use, including infringing acts which it had not previously committed.

PATENTOWNER/-APPLICANT: Dyson Technology Limited

OPPOSING-PARTY: Dreame International (Hongkong) Limited; Teqphone GmbH; Dreame Technology AB

LEGAL PROVISIONS: Art. 62(1) UPCA; Art. 25(a) UPCA; Art. 69 EPC

ORIGINAL-KEYWORDS: Appeal; Provisional measures; Claim construction; Injunction

CITED DECISIONS: UPC_CoA_335/2023, NanoString v 10x Genomics, UPC_CoA_405/2024, Alexion v Amgen, UPC_CoA_382/2024, Abbott v Sibio

AI-FEEDBACK:
– Functional language is relevant to claim construction, but it cannot erase the structural geometry and spatial relationships expressly taught by the claim and patent description.
– Once infringement is established, the risk of further infringement ordinarily extends to other statutory acts of use, so an injunction need not be confined to the exact act already proved.
– The scope of provisional relief must still track the patent and the infringing products, but Art. 62(1) and Art. 25(a) UPCA do not impose an act-by-act historical limitation.
– Example: the dispute concerned Dreame hair-styling attachments and the structural meaning of a slot formed by overlapping wall ends. After finding infringement, the Court held that relief could address further acts such as offering, placing on the market, importing or storing, even if every act had not previously been committed by each defendant.
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UPC_CFI_1234/2025; 2026-3-26

ORIGINAL-HEADNOTE:
1. Ein Antrag nach R. 333.1 der VerfO ist gegen eine Entscheidung des Berichterstatters nach R. 262.1(b) der VerfO unstatthaft (Rn. 24).
2. Ist der Spruchkörper für Verfahren wie nach R. 262.1(b) der VerfO nicht zuständig, kann die Entscheidung des als zuständig berufenen Berichterstatters aufgrund eines Antrags nach R. 333.1 der VerfO nicht im Wege dieses Sonderrechtsbehelfs durch den Spruchkörper überprüft werden (Rn. 26).
3. Für das eine Drittakteneinsicht nach R. 262.1(b) der VerfO begründende Fortbildungs- und Beratungsinteresse einer Rechtsanwaltskanzlei ist eine abstrakte Betrachtung geboten. Daher reicht es in der Regel, dass die begehrte Einsicht objektiv dazu führen kann, das Informationsinteresse für Fortbildungs- und Beratungszwecke zu befriedigen. Insofern braucht ein Antragsteller nicht konkret darzutun und zu begründen, welche Informationen er zu erhalten sucht und warum sie für seine Fortbildungs- und Beratungszwecke bedeutend oder erforderlich sind (Rn. 34/35).
4. Ebenso kommt es nicht darauf an, ob die Schriftsätze, die eingesehen werden sollen, unmittelbar Auskunft über die Handhabung des Falls durch das Gericht geben. Für das Fortbildungs- und Beratungsinteresse genügt es, wenn sich aus den Schriftsätzen mittelbar Informationen über die Handhabung von Fällen oder die Rechtsprechung des Gerichts ergeben (Rn. 36).

AI-TRANSLATED-HEADNOTE:
1. An application under R. 333.1 of the Rules of Procedure (RoP) is inadmissible against a decision of the judge-rapporteur under Rule 262.1(b) RoP (para. 24).
2. If the panel is not competent for proceedings such as those under R. 262.1(b) RoP, the decision of the judge-rapporteur designated as competent cannot be reviewed by the panel by way of this special remedy on the basis of an application under R. 333.1 RoP (para. 26).
3. For the training and advisory interest of a law firm justifying third-party access to the file under R. 262.1(b) RoP, an abstract assessment is required. Therefore, it is generally sufficient that the requested access can objectively serve to satisfy the interest in obtaining information for training and advisory purposes. In this respect, an applicant does not need to specifically set out and justify which information it seeks to obtain and why it is significant or necessary for its training and advisory purposes (paras. 34/35).
4. Likewise, it is not relevant whether the written pleadings to be inspected directly provide information on how the Court handled the case. For the purposes of training and advisory interests, it is sufficient if the written pleadings indirectly provide information on the handling of cases or on the Court’s case law (para. 36).

PATENTOWNER/-APPLICANT: Quinn Emanuel Urquhart & Sullivan, LLP

OPPOSING-PARTY: Huawei Technologies Co. Ltd.; MediaTek, Inc.; MediaTek Germany GmbH

LEGAL PROVISIONS: R. 262.1(b) VerfO; R. 333.1 VerfO; R. 220.1(b) VerfO

CITED DECISIONS: UPC_CoA_404/2023 – X v Ocado/Autostore, UPC_CoA_480/2024 and UPC_CoA_481/2024 – Powell v Abbott/Sibio, UPC_CoA_886/2025 – Herbert Smith v Insulet/EOFlow

AI-FEEDBACK:
– Rule 333 review is unavailable because Rule 262.1(b) gives the judge-rapporteur original, not delegated, competence to decide third-party file-access requests. The panel therefore cannot review that decision through the special Rule 333 remedy, although a direct appeal under Rule 220.1(b) remains available.
– A law firm’s training and advisory interest is assessed abstractly. It is normally enough that access can objectively provide information useful for professional training or client advice; the applicant need not identify each specific fact it expects to learn.
– Example: Quinn Emanuel requested the redacted statement of claim, statement of defence and counterclaim for revocation from proceedings concerning EP 3 905 840. Huawei opposed access and alleged an impermissible fishing exercise, but the Court upheld access within the redacted scope because the stated training and advisory interest was legitimate.
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UPC_CFI_2296/2025; 2026-3-24

ORIGINAL-HEADNOTE:
Le défaut d’intérêt à agir et l’autorité de la chose jugée, que le défendeur à une action invoque pour dénier à la juridiction le pouvoir de statuer sur le bien-fondé de la demande, n’ont pas d’incidence sur la compétence matérielle ou territoriale de la juridiction et n’entrent pas dans la liste des objections préliminaires énumérées dans la Règle 19.1 RdP, qui doit être regardée comme exhaustive.

AI-TRANSLATED-HEADNOTE:
Lack of standing and res judicata, invoked by the defendant in an action to deny the Court the power to rule on the merits of the claim, do not affect the Court’s subject-matter or territorial jurisdiction and do not fall within the list of preliminary objections set out in Rule 19.1 RoP, which must be regarded as exhaustive.

PATENTOWNER/-APPLICANT: Fives ECL

OPPOSING-PARTY: REEL International

LEGAL PROVISIONS: Règle 19.1 RdP; Règle 361 RdP; Règle 362 RdP; Article 47(6) AJUB

ORIGINAL-KEYWORDS: Objection préliminaire; R. 19; intérêt à agir; principe de la chose jugée (non)

AI-TRANSLATED-KEYWORDS: Preliminary objection; R. 19; standing; res judicata (no)

CITED DECISIONS: UPC_CoA_188/2024 – Aylo v DISH/SLING, UPC_CoA_288/2025 – Roku/Sun, UPC_CFI_513-514-515_2023 – Network System Technologies v Audi

AI-FEEDBACK:
– Rule 19.1 contains an exhaustive list of preliminary objections concerning the Court’s jurisdiction, the competence of the chosen division and the language of proceedings. Defences that may defeat the action on admissibility or merits grounds do not become jurisdictional objections merely because the defendant labels them that way.
– Lack of standing and res judicata may ultimately prevent a revocation action from succeeding, but they require substantive assessment and must be decided in the main proceedings rather than through the preliminary-objection mechanism.
– Example: Fives ECL argued that REEL International lacked standing to challenge the expired EP 1 740 740 and that an earlier German judgment had res judicata effect. The judge-rapporteur rejected the preliminary objection and left both issues for determination on the merits because they required examination of the parties, causes of action and supporting evidence.
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UPC_CFI_519/2024; UPC_CFI_64/2025; 2026-3-18

ORIGINAL-HEADNOTE:
Von der Vernichtungsmaßnahme ausgenommen sind Werbematerialien, weil diese nicht vom Gesetzeswortlaut erfasst werden. Art. 64 Abs. 2 (e) EPGÜ nennt die Vernichtung der Erzeugnisse und/oder betreffenden Materialien und Geräten. Mit letzteren sind solche Materialien und Geräte gemeint, die zur Herstellung der Erzeugnisse dienen.

AI-TRANSLATED-HEADNOTE:
Advertising materials are exempt from destruction because they are not covered by the wording of the law. Art. 64(2)(e) UPCA refers to the destruction of products and/or relevant materials and equipment. The latter refers to materials and equipment used in the production of the products.

PATENTOWNER/-APPLICANT: CUP&CINO Kaffeesystem-Vertrieb GmbH & Co. KG

OPPOSING-PARTY: ALPINA Coffee Systems GmbH

LEGAL PROVISIONS: Art. 25(a) EPGÜ; Art. 64 Abs. 2(e) EPGÜ

ORIGINAL-KEYWORDS: Vernichtung; Art. 64 Abs. 2(e) EPGÜ

AI-TRANSLATED-KEYWORDS: Destruction; Art. 64(2)(e) UPCA

CITED DECISIONS: UPC_CoA_335/2023 – 10x Genomics v NanoString, UPC_CoA_182/2024 – Mammut v Ortovox, UPC_CFI_7/2024 / ORD_598324/2023 – Franz Kaldewei v Bette, UPC_CoA_764/2024 – expert klein v Seoul Viosys, UPC_CoA_528/2024 – Amgen v Sanofi, UPC_CoA_464/2024 – Meril v Edwards, UPC_CFI_7/2023 – Kaldewei v Bette, UPC_CFI_16/2024 – Ortovox v Mammut, UPC_CFI_373/2023 – SodaStream v Aarke, UPC_CFI_363/2024 / ORD_598458/2023 – Seoul Viosys v expert, UPC_CoA_328/2024 – Ballinno v Kinexon Sports, UPC_CFI_373/2024 – SodaStream v Aarke, UPC_CFI_514/2023 – Volkswagen v NST

AI-FEEDBACK:
– The destruction remedy is governed by the wording of Article 64(2)(e) UPCA. It reaches infringing products and the materials or equipment used to manufacture those products, but it does not automatically extend to every object commercially connected with the infringement.
– Pure advertising materials merely depicting an infringing product are not manufacturing materials or equipment and therefore fall outside the statutory destruction measure.
– Example: The Court found infringement involving ALPINA’s Latte Perfetto Duo milk frother and ordered destruction of the infringing products, but excluded brochures and other advertising materials that only depicted the milk frother.
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#actionable UPC_CFI_417/2025; UPC_CFI_509/2025; UPC_CFI_528/2025; 2026-3-18

ORIGINAL-HEADNOTE:
1. L’article 123(3) CBE a pour objectif de garantir la sécurité juridique des tiers en interdisant toute extension de la protection conférée par les revendications d’un brevet après la date de délivrance, indépendamment de la question de savoir si cette extension découlerait directement et sans ambiguïté de la demande telle que déposée. La protection peut être à la fois étendue par certains aspects et restreinte par d’autres aspects. Pour l’appréciation de l’article 123(3) CBE, il suffit d’identifier un mode de réalisation couvert par le brevet modifié et non couvert par le brevet délivré pour conclure à une extension illicite de la protection.
2. Une erreur matérielle évidente figurant dans une revendication du brevet délivré peut être rectifiée à l’occasion d’un amendement du brevet.
3. Une erreur matérielle évidente figurant dans une pièce soumise par une partie, par exemple dans le texte de revendications modifiées, peut être rectifiée par la partie en question, sans que cette rectification ne soit assimilée à un nouveau moyen tardif.
4. Lorsqu’il existe certaines contradictions entre la description et une revendication du brevet, et que la personne du métier identifierait sans difficulté ces contradictions, le texte de la revendication prime sur la description dans l’interprétation de cette revendication, puisqu’elle constitue le point de départ et la base décisive de toute interprétation.

AI-TRANSLATED-HEADNOTE:
1. Article 123(3) EPC aims to safeguard legal certainty for third parties by prohibiting any extension of the protection conferred by a patent’s claims after grant, irrespective of whether that extension would derive directly and unambiguously from the application as filed. Protection may be broadened in some respects and narrowed in others. For the assessment under Article 123(3) EPC, it is sufficient to identify one embodiment covered by the amended patent but not by the patent as granted in order to establish an impermissible extension of protection.
2. An obvious clerical error in a claim of the patent as granted may be corrected when the patent is amended.
3. An obvious clerical error in a document filed by a party, for example in the text of amended claims, may be corrected by that party without the correction being treated as a new late-filed submission.
4. Where there are contradictions between the description and a claim, and the skilled person would readily identify those contradictions, the wording of the claim prevails over the description when interpreting the claim, because the claim is the starting point and decisive basis for any interpretation.

PATENTOWNER/-APPLICANT: TIRU

OPPOSING-PARTY: VEOLIA PROPRETE; VALINEA ENERGIE; MAGUIN SAS

LEGAL PROVISIONS: Article 123(3) CBE; Article 138(1)(d) CBE; Article 69 CBE and its Protocol on Interpretation; Règle 30 RdP; Règle 43(7) CBE

ORIGINAL-KEYWORDS: extension de la protection; rectification d’erreur évidente; contradiction entre la description et les revendications; usage antérieur public

AI-TRANSLATED-KEYWORDS: extension of protection; correction of an obvious error; contradiction between the description and the claims; public prior use

CITED DECISIONS: UPC_CoA_335/2023, UPC_CoA_464/2024, UPC_CoA_528/2024, G 3/14

AI-FEEDBACK:
– Article 123(3) EPC requires a strict comparison between the scope of the patent as granted and the scope after amendment. A single newly covered embodiment is enough to establish an unlawful extension, even where the amended claim is narrower in other respects.
– The Court distinguished substantive late amendments from the correction of objectively obvious clerical mistakes. Such mistakes may be corrected both in a granted claim during amendment proceedings and in amended-claim documents filed by a party.
– When the description and claim wording clearly conflict, the claim wording controls because claims are the starting point and decisive basis for determining scope.
– Example: TIRU’s amended waste-incineration claim covered a configuration in which cooling air did not pass through the forward and return channels, although that configuration was not covered by the granted claim; the main request therefore violated Article 123(3) EPC. By contrast, the Court allowed correction of an accidentally inserted “10” and removal of duplicated wording in amended claims.
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UPC_CoA_922/2025; UPC_CoA_923/2025; UPC_CoA_924/2025; UPC_CoA_925/2025; 2026-3-13

ORIGINAL-HEADNOTE:
En principe, le mémoire en demande doit contenir les éléments de droit et fait nécessaires pour justifier la compétence de la juridiction.
Lorsque la compétence de la juridiction est fondée sur l’Article 7(2) du règlement 1215/2012, en tant que juridiction du lieu où le fait dommageable s’est produit ou risque de se produire, cette disposition ne lui donne pas compétence pour connaître de la contrefaçon commise dans un Etat non-membre de l’AJUB.

AI-TRANSLATED-HEADNOTE:
As a rule, the Statement of claim should contain the facts and legal arguments necessary to justify the jurisdiction of the Court.
Where the UPC has jurisdiction on the basis of Article 7(2) of Regulation 1215/2012 as the court of the place where the damage occurred or threatens to occur, that article does not provide jurisdiction for infringement in non-member states of the UPC.

PATENTOWNER/-APPLICANT: KEEEX SAS

OPPOSING-PARTY: ADOBE INC.; ADOBE SYSTEMS SOFTWARE IRELAND LIMITED; OPENAI LP; OPENAI OPCO LLC; OPENAI IRELAND LTD; TRUEPIC INC.; JOINT DEVELOPMENT FOUNDATION PROJECTS LLC; COALITION FOR CONTENT PROVENANCE AND AUTHENTICITY

LEGAL PROVISIONS: Article 7(2) du règlement (UE) n° 1215/2012; Article 71ter(3) du règlement (UE) n° 1215/2012; R. 13.1(i) RdP; Article 31 AJUB

ORIGINAL-KEYWORDS: Compétence internationale de la JUB: portée de l’arrêt dit BSH; conditions d’application de l’article 71ter(3) du règlement 1215/2012; vérification de la compétence par la juridiction

AI-TRANSLATED-KEYWORDS: International jurisdiction of the UPC: scope of the BSH judgment; conditions for the application of Article 71b(3) of Regulation 1215/2012; verification of jurisdiction by the Court

CITED DECISIONS: UPC_CoA_188/2024 – Aylo v Dish, UPC_CoA_317/2025 – Barco v Yealink, UPC_CoA_338/2024 – Sibio v Abbott, C-339/22 – BSH Hausgeräte v Electrolux, C-441/13 – Pez Hejduk v EnergieAgentur.NRW, C-68/93 – Fiona Shevill, C-375/13 – Kolassa, C-12/15 – Universal Music

AI-FEEDBACK:
– A claimant must normally plead the factual and legal basis for international jurisdiction in the Statement of claim. The Court may examine jurisdiction using all available information, but it is not required to construct an unpleaded jurisdictional case for the claimant.
– Jurisdiction under Article 7(2) of Regulation 1215/2012, based on the place where damage occurred or may occur, is territorially limited and does not empower the UPC to decide infringement of national patent parts in states that are not members of the UPCA.
– Article 71b(3) may provide an additional jurisdictional basis in certain circumstances, but its factual conditions must be properly pleaded and supported.
– Example: KEEEX alleged infringement of EP 2 949 070 in Switzerland, Spain, the United Kingdom, Ireland, Norway and Poland against Adobe, OpenAI and other defendants. Because the Statement of claim did not set out a substantiated jurisdictional basis under Article 71b(3), the Court of Appeal set aside the first-instance ruling insofar as it accepted jurisdiction over those non-UPCA territories.
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UPC_CFI_1049/2025; 2026-3-24; BTL Medizintechnik v. Lexter

ORIGINAL-HEADNOTE:
According to Art. 5 of the Administrative Committee’s decision of 4 November 2025 the RoP in the version of 2025 are to be applied to proceedings initiated before 31 December 2025.

PATENTOWNER/-APPLICANT: BTL Healthcare Technologies a.s.
OPPOSING-PARTY: Lexter Microelectronic Engineering Systems S.L.
LEGAL PROVISIONS: Art. 5 of the Administrative Committee’s decision of 4 November 2025; Rule 370.9(b)(i) RoP (2025)
ORIGINAL-KEYWORDS: R. 370 RoP; reimbursement of court fees

AI-FEEDBACK:
– The headnote clarifies the temporal scope of the 2025 version of the Rules of Procedure. Proceedings initiated before 31 December 2025 remain governed by that version, even where a later procedural step occurs in 2026.
– This determines which reimbursement rule applies after an early termination of proceedings and prevents the revised fee regime from being applied retroactively to an earlier-filed action.
– Example: BTL Medizintechnik filed the infringement action on 6 October 2025 and withdrew it before the written procedure closed. The Hamburg Local Division therefore applied Rule 370.9(b)(i) RoP (2025) and ordered reimbursement of 60% of the court fees.
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UPC_CFI_135/2024; UPC_CFI_477/2024; 2026-3-18; Dolby v. Beko

ORIGINAL-HEADNOTE:
1. Eine beherrschende Stellung im Sinne von Art. 102 AEUV auf dem relevanten Markt kann sich daraus ergeben, dass ohne eine Lizenz am Streitpatent keine Produkte (hier Smart-TVs) angeboten werden können, die mit einem gängigen Standard kompatibel sind. Entscheidend ist dabei die Erwartungshaltung des Verbrauchers, dass Smart-TVs alle gängigen Audio- und Video-Codecs umfassen und dadurch alle Inhalte decodieren können, die von den Anbietern von Diensten entsprechend codiert wurden.
2. Im Hinblick auf die grundlegende Einordnung des FRAND-Verhandlungsprogramms nach Huawei v. ZTE schließt sich die Lokalkammer Düsseldorf den Lokalkammern Mannheim (UPC_CFI_210/2023, Entscheidung vom 22. November 2024 – Panasonic v. OPPO) und München (UPC_CFI_9/2023, Entscheidung vom 18. Dezember 2024 – Huawei v. Netgear) an. Soweit Unterschiede zwischen beiden Lokalkammern in der Anwendung der Grundsätze nach Huawei v. ZTE bestehen, kommt es auf diese in dem von der Lokalkammer Düsseldorf entschiedenen Fall nicht an.
3. Fehlt in Anwendung des Verhandlungsprogramms nach Huawei v. ZTE die initiale Bekundung der Lizenzwilligkeit durch den Verletzer („Schritt 2“), nachdem der Patentinhaber diesen auf die Patentverletzung hingewiesen hat („Schritt 1“), ist die Prüfung beendet. Die Frage, ob das Angebot des Patentinhabers FRAND ist, bedarf dann keiner Untersuchung mehr.

AI-TRANSLATED-HEADNOTE:
1. A dominant position within the meaning of Article 102 TFEU on the relevant market may arise if products (here: smart TVs) that are compatible with a common standard cannot be offered without a licence for the patent in suit. The decisive factor is that consumers expect that smart TVs include all common audio and video codecs and can therefore decode all content that is encoded accordingly by service providers used for encoding.
2. Regarding the fundamental classification of the FRAND negotiation programme after Huawei v. ZTE, the Düsseldorf Local Division agrees with the Mannheim Local Division (UPC_CFI_210/2023, Decision of 22 November 2024 – Panasonic v. OPPO) and the Munich Local Division (UPC_CFI_9/2023, Decision of 18 December 2024 – Huawei v. Netgear). Any differences between the two Local Divisions in the application of the principles under Huawei v. ZTE are irrelevant in the case decided by the Düsseldorf Local Division.
3. In accordance with the negotiation programme established in Huawei v. ZTE, if the infringer fails to initially express its willingness to conclude a licensing agreement (“step 2”), in response to a compliant notification of infringement/invitation thereto (“step 1”), the examination is terminated. In this case, the question of whether the patent holder’s offer is FRAND does not need to be investigated.

PATENTOWNER/-APPLICANT: Dolby International AB
OPPOSING-PARTY: Beko Germany GmbH; Arçelik A.Ş
LEGAL PROVISIONS: Art. 102 TFEU
ORIGINAL-KEYWORDS: FRAND; beherrschende Stellung; Bekundung der Lizenzwilligkeit
AI-TRANSLATED-KEYWORDS: FRAND; dominant position; expression of willingness to conclude a licensing agreement
CITED DECISIONS: CJEU, Judgment of 16 July 2015, C-170/13 – Huawei v. ZTE, UPC_CFI_210/2023, Decision of 22 November 2024 – Panasonic v. OPPO, UPC_CFI_9/2023, Decision of 18 December 2024 – Huawei v. Netgear

AI-FEEDBACK:
– The decision links market dominance to commercial indispensability: a codec patent may confer dominance where consumers expect a smart TV to decode content delivered in all commonly used formats and manufacturers cannot meet that expectation without a licence.
– The Huawei v. ZTE framework is sequential. After a compliant infringement notice, the implementer must clearly express willingness to take a licence on FRAND terms. Without that second step, the court does not proceed to examine whether the patent proprietor’s offer is FRAND.
– Example: Arçelik did not respond to Dolby’s infringement notice of 24 January 2024 before the action was filed on 5 April 2024. Its later statement that it was “in principle willing” was coupled with the position that no royalty was payable for the Opus patent, so the Court found no sufficient willingness, rejected the FRAND defence, found infringement, and dismissed the revocation counterclaim.
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#actionable #top UPC_CFI_180/2025; UPC_CFI_210/2025; 2026-3-11; BFexaQC and ParTec v. NVIDIA

ORIGINAL-HEADNOTE:
Stellungnahmen eines Patentanmelders im Erteilungsverfahren stellen kein Auslegungsmaterial für die Auslegung des erteilten Patents im Sinne von Art. 69 Abs. 1 EPÜ dar. Ebenso wenig sind solche Äußerungen des Anmelders im Erteilungsverfahren für die Auslegung in einem nachfolgenden Verletzungs- oder Nichtigkeitsverfahren bindend. Sie können jedoch ein Indiz für das fachmännische Verständnis von der Lehre des erteilten Patents im Prioritätszeitpunkt geben, weil der Anmelder selbst regelmäßig das beste Verständnis von seiner Erfindung und das zugehörige Fachwissen hat (Fortführung von: Berufungsgericht, Anordnung vom 20.12.2024, UPC_CoA_402/2024 – Alexion gg. Samsung Bioepis).
Es stellt keine Klageänderung im Sinne von Regel 263 VerfO dar, wenn sich das angegriffene Produkt nach der Klageerwiderung des Beklagten in technischen Einzelheiten anders darstellt als es der Kläger in der Klageschrift beschrieben hatte und der Kläger den Verletzungsvorwurf in der Replik auf die vom Beklagten beschriebene technische Funktionsweise stützt, solange sich der Verletzungsangriff weiterhin auf das allgemein beschriebene Produkt und seine angegriffene Funktion bezieht.
Es ist prozessual zulässig, dass der Beklagte einer Verletzungsklage eine Widerklage auf Nichtigerklärung unter der auflösenden Bedingung erhebt, dass die Verletzungsklage keinen Erfolg hat. Tritt diese Bedingung ein, weil das Streitpatent ungeachtet des Rechtsbestands des Streitpatents nicht verletzt ist, ist über die Widerklage auf Nichtigerklärung nicht mehr zu entscheiden.

AI-TRANSLATED-HEADNOTE:
Statements made by a patent applicant during the grant procedure do not constitute material for the interpretation of the granted patent within the meaning of Art 69(1) EPC, nor are such statements by the applicant in the grant procedure binding for the claim construction in subsequent infringement or revocation proceedings. However, they may provide an indication of how a person skilled in the art would understand the technical teaching of the granted patent on the priority date, since the applicant himself usually has the best understanding of his invention and the associated technical knowledge (continuation of CoA, Order of 20 December 2024, UPC_CoA_402/2024 – Alexion v Samsung Bioepis).
It does not constitute an amendment to the claim within the meaning of Rule 263 of the RoP if, according to the Defendant’s Statement of Defence, the attacked product differs in technical details from that described by the Claimant in the Statement of Claim and the Claimant bases the allegation of infringement in the Reply to the Statement of Defence on the technical functioning described by the Defendant, as long as the infringement claim continues to relate to the generally described product and its attacked function.
It is admissible in procedural terms for the Defendant to file a counterclaim for revocation in response to an infringement action, subject to the condition subsequent that the infringement action is unsuccessful. If this condition is met because the patent at issue is not infringed regardless of its validity, no decision is required on the counterclaim for revocation.

PATENTOWNER/-APPLICANT: ParTec AG
OPPOSING-PARTY: NVIDIA Corporation; NVIDIA GmbH
LEGAL PROVISIONS: Art. 69(1) EPC; Rule 25.1 RoP; Rule 263 RoP
CITED DECISIONS: UPC_CoA_402/2024, Order of 20 December 2024 – Alexion v. Samsung Bioepis, UPC_CFI_414/2024, Decision of 5 December 2025 – Centripetal v. Keysight, UPC_CFI_628/2024, Decision of 13 January 2026 – Emboline v. Aorticlab, UPC_CoA_393/2025, Order of 20 June 2025 – Emboline v. Aorticlab

AI-FEEDBACK:
– Prosecution statements are not part of the formal claim-construction material under Article 69(1) EPC and do not estop the applicant in later UPC litigation. They may nevertheless be evidentially relevant to the skilled person’s understanding at the priority date.
– A claimant may respond to a defendant’s more accurate technical account without seeking permission to amend the action, provided the same generally identified product and allegedly infringing function remain under attack.
– A revocation counterclaim may be made conditional on the infringement action succeeding. Example: the dispute concerned NVIDIA DGX systems using Run:ai software. The Court accepted the procedural refinement of the infringement theory but found that creating replicas of pods did not redistribute the original subtasks in further computing iterations, dismissed the infringement action, and therefore did not decide the conditionally filed revocation counterclaim.
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#actionable UPC_CFI_63/2024; UPC_CFI_449/2024; 2026-3-11; Network System Technologies v. Qualcomm

ORIGINAL-HEADNOTE:
The “attacked embodiment” is regularly determined by the factual design of a certain product or a process with regard to the features of the invoked patent claim as asserted in the Statement of Claim. This can be a specific product determined, for example, by its product name, product sheet and technical design. However, the attacked embodiment may also comprise all products that generally have the technical features specified by the Claimant, which allegedly realise the technical teaching of the patent claim. This may also include products unknown to the Claimant or, in the case of an injunction, future products insofar as they essentially correspond to the features of the product presented by the Claimant in his Statement of Claim, which he considers decisive for the patent infringement. In such a case, it is usually sufficient if the Claimant has exemplified the infringement on a sample of the attacked embodiment.

PATENTOWNER/-APPLICANT: Network System Technologies LLC
OPPOSING-PARTY: Qualcomm Incorporated; Qualcomm Technologies, Inc.; Qualcomm Germany GmbH
LEGAL PROVISIONS: Art. 25 et seq. UPCA; Art. 56 et seq. UPCA; Art. 59(1) UPCA; Rule 190.1 RoP; Art. 123(2) EPC; Art. 138(1)(c) EPC; Art. 65(2) UPCA

AI-FEEDBACK:
– The scope of the attacked embodiment follows from a fair reading of the Statement of Claim. It may be a named product or a technically defined category extending beyond the examples expressly listed by the claimant.
– This procedural breadth does not establish infringement by itself. The claimant must provide a conclusive technical case for the whole defined category and cannot rely on source-code production to search for a new infringement theory after its original assumptions fail.
– Example: the Court held that the action covered all Qualcomm NoC ICs alleged to use Arteris design tools or derivatives, rather than only Snapdragon 8+ Gen. 1. The Arteris material did not conclusively describe the Qualcomm chips, the infringement allegation failed, and EP 1 552 669 was additionally revoked for added matter.
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UPC_CFI_141/2026; 2026-3-6; KeyMed v. PR Medical

ORIGINAL-HEADNOTE:
1. Rule 14.2 (b) RoP, which states that the proceedings shall be conducted in the official language of the Contracting Member State only whether: (i) the Defendant has its principal place of business in that Contracting Member State and (ii) and the action cannot be brought before any other local division according to Art. 33 (1) a) of the Agreement of the Unified Patent Court (“UPCA”) is an exception, to be interpreted restrictively. T
2. These two conditions are cumulative and must therefore be considered together. In the event of a dispute, the claimant bears the burden of proof, bearing in mind the stage of the proceedings.

PATENTOWNER/-APPLICANT: KeyMed Limited
OPPOSING-PARTY: PR Medical s.r.l.
LEGAL PROVISIONS: Rule 14.2(b) RoP; Art. 33(1)(a) UPCA; Art. 49(1) and (2) UPCA
ORIGINAL-KEYWORDS: Rule 14(2)(b) RoP; Article 33(1)(a) UPCA

AI-FEEDBACK:
– Rule 14.2(b) RoP is a narrow exception to the claimant’s language choice. The defendant must have its principal place of business in the relevant Contracting Member State and the action must be incapable of being brought before any other local division under Article 33(1)(a) UPCA.
– Because the two requirements are cumulative, an Italian defendant is not enough by itself to compel Italian as the language of proceedings. At the preliminary stage, the claimant must sufficiently show that another local division could also have jurisdiction.
– Example: PR Medical was based in Italy, but KeyMed alleged threatened or actual infringement through a website across Contracting Member States and promotion at congresses in Germany and Spain. Since the action could also have been brought in Germany, the Milan Local Division rejected the request to change the language from English to Italian.
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UPC_CFI_344/2025, UPC_CFI_735/2025; 2026-2-27; Irdeto v DJI

ORIGINAL-KEYWORDS:
counterclaim, court fee, Rule 370.7 RoP

ORIGINAL-HEADNOTE:
It follows from Rule 370.7 RoP that if a counterclaim for revocation is submitted on behalf of several defendants, only one court fee needs to be paid for that counterclaim. However, if one of the defendants submits their own counterclaim at a later stage (e.g. because the statement of claim was served much later), that defendant cannot rely on the fee already paid by the other defendants. In this situation, it is not the same action/counterclaim in the meaning of Rule 370.7 RoP, even if the content of the submission is the same. Therefore, a separate fee must be paid.

AI FEEDBACK:
– Rule 370.7 RoP avoids duplicate fees only where several defendants bring one joint counterclaim; it does not create a fee credit for a later, procedurally separate counterclaim.
– The decisive point is the identity of the action or counterclaim, not whether the later pleading repeats the same invalidity arguments.
– Example: Defendants 2-4 jointly filed a revocation counterclaim in August 2025 and paid one fee. Defendant 1, which was served much later in China, filed its own counterclaim in February 2026 and therefore had to pay a separate fee within 14 days.
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UPC_CFI_609/2025; 2026-2-24; UERAN Technology v Xiaomi

ORIGINAL-HEADNOTE:
1. It follows from Art. 48 UPCA that a party has the fundamental right to freely choose whether it wishes to be represented by a lawyer (authorised to practise before a court of a Contracting Member State) or a European Patent Attorney according to Art. 48 II UPCA or by a team of both, optionally assisted by patent attorneys.
2. Neither Art. 48 UPCA nor Art. 58 UPCA implies that the right to freely choose a representative in proceedings before the UPC and to be represented by this representative in all relevant matters can be restricted with regard to whether the representative has a more legal or a more technical background. Both types of representatives are to be treated equally. As with technically qualified judges, the competence of a patent attorney to represent is not limited to purely technical matters.

AI FEEDBACK:
– Articles 48 and 58 UPCA protect a party’s freedom to organise its UPC representation team. European Patent Attorneys cannot be excluded from parts of a case merely because the information is characterised as legal, commercial, or non-technical.
– A confidentiality club must therefore be structured without discriminating between lawyer representatives and patent-attorney representatives solely by professional background.
– Example: Xiaomi asked the court to remove UERAN’s patent attorneys from access to confidential licence-negotiation material and leave access only to attorneys-at-law. The judge-rapporteur rejected that request, while correcting the confidentiality order only to add paragraph numbers that had been omitted by clerical error.
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UPC_CoA_9/2026; 2026-2-24; Gowling WLG request in Boehringer Ingelheim v Zentiva

ORIGINAL-KEYWORDS:
Public access to the register

ORIGINAL-HEADNOTE:
– Reasoned requests to the Registry for written pleadings and evidence (access to documents pursuant to R. 262.1(b) RoP), lodged at the Court of First Instance, shall be made to the relevant Division. Similarly, reasoned requests for written pleadings and evidence, lodged at the Court of Appeal, shall be made to the Court of Appeal.
– The provision that a decision will be taken by the judge-rapporteur after consulting the parties (R. 262.1(b) RoP) ensures that the judge adjudicating on access is familiar with the casefile, separately for each instance.
– Such separate responsibility for the Court of First Instance and Court of Appeal is in line with the provisions on the court files in the Statute and the Registry Rules. The Statute makes a clear distinction between the register kept by the Registrar (Art. 23 UPCS) and the sub-registries kept by the Deputy-Registrar (Art. 25 UPCS). The latter concerns the records of the cases before the Court of First Instance. In accordance with this distinction, the RegR provide that the Deputy-Registrar shall keep the “case files of proceedings before the CFI” (R. 56 RegR), which include all pleadings and documents filed with the Court of First Instance (R. 59 RegR), and shall ensure access to such Court of First Instance case files by third parties (R. 66 RegR). For the management of case files before the Court of Appeal, the Registrar shall have those duties (R. 73 RegR).
– Re-lodging on appeal of documents lodged at the Court of First Instance is normally not called for since the Court of Appeal shall consult the file of the proceedings before the Court of First Instance pursuant to R. 222.1 RoP. Such consultation does not generate any copies of the documents into the file of the proceedings before the Court of Appeal.
– If a party, for reasons of its own, re-lodges documents on appeal, this not only represents additional work for parties and the Court alike, but it also means that members of the public can chose to request access to those documents from the Court of First Instance, the Court of Appeal, or if there is reason for it, both.
– A request for written pleadings and evidence must be specified and cannot be made in terms which would require the Court to search and select documents based on relevance criteria set up by the requesting party.

AI FEEDBACK:
– Public-access requests under Rule 262.1(b) RoP are instance-specific: first-instance documents are requested from the relevant CFI division, while appeal documents are requested from the Court of Appeal. Consulting the CFI file on appeal does not copy those documents into the appeal file.
– The applicant must identify the documents with enough precision for the court to perform the required balancing exercise; the court is not required to search the file using the applicant’s relevance criteria.
– Example: Gowling WLG’s request for specified appeal pleadings was granted in redacted form, but its request for “all exhibits,” especially those relevant to infringement or the balance of interests, was dismissed as ambiguous and insufficiently specified.
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UPC_CoA_890/2025; 2026-2-18; Syntorr v Arthrex (EP 2 670 898)

ORIGINAL-KEYWORDS:
Security for costs – Financial position of the claimant – Litigation insurance (After The Event insurance) with an anti-avoidance endorsement.

ORIGINAL-HEADNOTE:
(1) When exercising its discretion under Art. 69(4) UPCA and R.158.1 RoP, the Court must determine, in the light of the facts and arguments brought forward by the parties, whether the financial position of the claimant gives rise to a legitimate and real concern that a possible order for costs may not be recoverable and/or the likelihood that a possible order for costs by the UPC may not, or in an unduly burdensome way, be enforceable.
(2) A litigation insurance that covers the legal costs of the defendant must be considered when assessing whether the claimant’s financial position gives rise to a concern that a possible order for costs may not be enforceable, or in an unduly burdensome way, by the defendant.

AI FEEDBACK:
– Security for costs requires a concrete, evidence-based risk that a future costs order will be unrecoverable or unduly difficult to enforce; it is not justified merely by general doubts about the claimant’s finances.
– After-the-event insurance is part of the claimant’s financial position and must be assessed on its actual terms, including direct enforceability, limits, cancellation protection, and the insurer’s solvency.
– Example: Syntorr had a EUR 4 million policy from an EU insurer with an anti-avoidance endorsement protecting Arthrex directly and preserving cover for costs incurred before any termination took effect. The Court of Appeal set aside the EUR 2 million security order, dismissed the security request, and ordered release of Syntorr’s bank guarantee.
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UPC_CoA_889/2025; 2026-2-18; Syntorr v Arthrex (EP 3 835 470)

ORIGINAL-KEYWORDS:
Security for costs – Financial position of the claimant – Litigation insurance (After The Event insurance) with an anti-avoidance endorsement.

AI FEEDBACK:
– The discretion to order security under Article 69(4) UPCA and Rule 158.1 RoP must be exercised on the specific evidentiary record, focusing on a legitimate and real enforcement risk.
– Litigation insurance that genuinely secures the defendants’ costs can remove that risk and must not be ignored simply because it is insurance rather than a deposit or bank guarantee.
– Example: In this parallel Syntorr action, the same EUR 4 million insured protection, direct-benefit anti-avoidance endorsement, and 60-day termination notice meant that Arthrex had no substantiated recovery concern. The security orders were set aside and the separate bank guarantee was released.
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UPC_CoA_937/2025, UPC_CoA_938/2025; 2026-2-17; bioMérieux v Labrador Diagnostics

ORIGINAL-KEYWORDS:
Stay of revocation proceedings (R. 295(a) RoP), parallel opposition proceedings, extension of time limit for Statement of grounds of appeal (R. 9.3(a) RoP)

ORIGINAL-HEADNOTE:
1. Given the strict deadline regime set out in the Rules of Procedure, which serves to ensure that proceedings are conducted as expeditiously as possible, the option of extending time periods under R. 9.3(a) RoP should be used with restraint and exclusively in exceptional circumstances.
2. An extension of the deadline for filing the Statement of grounds of appeal in the revocation appeal proceedings (by Appellants in the revocation appeal) to the same (later) date for filing the Statement of grounds of appeal in the infringement appeal proceedings (by Respondent in the revocation appeal) is not justified, where other, more efficient means can be used to align the revocation and infringement proceedings, such as hearing the appeals together pursuant to R. 220.5 RoP.

AI FEEDBACK:
– UPC appeal deadlines are deliberately strict, so Rule 9.3(a) extensions require exceptional circumstances rather than general procedural convenience. Parallel validity and infringement appeals can be coordinated through case-management tools, especially a joint hearing, without delaying the first appeal’s written timetable.
– A rapidly expected EPO opposition decision does not automatically justify a stay when it can be introduced and considered later in the UPC appeal without stopping the proceedings.
– Example: bioMérieux sought to move its grounds deadline from 23 February to 28 May 2026, partly to await the EPO hearing and align with a possible infringement appeal. The Court refused both the stay and extension because the EPO outcome could be submitted later and any two UPC appeals could be heard together under Rule 220.5 RoP.
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UPC_CFI_1963/2025; 2026-2-17; Valeo v Bosch

ORIGINAL-KEYWORDS:
Compétence interne de la JUB- Art. 33.1.b/ AJUB- – pluralité de défendeurs- double condition

AI-TRANSLATED-KEYWORDS:
Internal jurisdiction of the UPC; Article 33(1)(b) UPCA; multiple defendants; two cumulative conditions

ORIGINAL-HEADNOTE:
La condition fixée par l’article 33.1.b/ relative à « l’action porte sur la même contrefaçon », pour justifier la compétence interne d’une Division Locale, en cas de pluralité de défendeurs, s’entend de la violation d’un même brevet, par tous les défendeurs, et n’exige pas une identité de produits argués de contrefaçon, entre tous les défendeurs.

AI-TRANSLATED-HEADNOTE:
The condition in Article 33(1)(b) UPCA that “the action relates to the same alleged infringement,” which supports the internal jurisdiction of a Local Division where there are multiple defendants, means infringement of the same patent by all defendants and does not require all defendants to be accused in relation to identical products.

AI FEEDBACK:
– For multi-defendant jurisdiction under Article 33(1)(b) UPCA, the defendants must have a commercial relationship and the action must concern infringement of the same patent. The accused products, distribution channels, and national markets need not be identical for every defendant.
– This interpretation supports procedural efficiency and avoids splitting related group-company conduct into several actions merely because different entities handle different products or territories.
– Example: Valeo sued six Bosch group companies over different wiper-system products allegedly implementing the same Aquablade technology under EP 4 144 599. The Paris Local Division held that the common group activity and alleged infringement of one patent were sufficient, and rejected Bosch’s preliminary objections.
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#actionable UPC_CoA_302/2025, UPC_CoA_305/2025; 2026-2-17; Rematec v Europe Forestry

ORIGINAL-KEYWORDS:
Appeal, corrective measures, counterclaim for revocation, destruction, indirect infringement, inventive step, legitimate interest, novelty, person skilled in the art, proportionality, publication of decisions, referral back, sufficiency.

ORIGINAL-HEADNOTE:
– A decision on whether the subject-matter of a dependent patent claim is not disclosed in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art, Art. 138 (1)(b) EPC, is not required for lack of legal interest on the part of the revocation (counter)claimant if the (counter)claim for revocation is already unsuccessful with respect to the independent patent claim to which the dependent patent claim directly or indirectly refers back and which therefore has a scope of protection that also encompasses the dependent patent claim.
– Pursuant to Art. 75(1) UPCA, where the Court of Appeal sets aside a decision of the Court of First Instance, it shall, as a rule, give a final decision itself. This means that the Court of Appeal, after considering the appeal of the Claimant (and revocation defendant) against the judgment of the Court of First instance in the counterclaim for revocation to be well-founded, must, in order to issue a final decision, as a rule decide not only on the counterclaim for revocation but also render a final decision on the infringement action.
– A referral back to the Court of First instance is contemplated, as follows from Article 75(2) UPCA, only in exceptional cases and in accordance with the Rules of Procedure. Accordingly, Rule 242.2(b) RoP provides that the fact that the Court of First Instance failed to decide an issue which it is necessary for the Court of Appeal to decide on appeal does not normally constitute an exceptional circumstance justifying a referral back. Consequently, the fact that the Court of First Instance did not have to rule on the infringement of the patent at issue because, in the context of a counterclaim for revocation brought by the Defendant, it considered the patent underlying the infringement action to be invalid and therefore revoked it does not, as a rule, give the Court of Appeal grounds to refer the counterclaim for revocation and the infringement action — or even only the infringement action — back to the Court of First Instance.
– In addition to finding a patent infringement, an order pursuant to Art. 80 UPCA also requires the finding of a legitimate interest of the claimant in the requested publication of the decision at the defendant’s expense. In this regard, all circumstances of the individual case must be considered, such as the scope and severity of the infringement, the public presentation of the conflict, the public’s interest in information, and whether the publication of the decision can contribute to eliminating misconceptions in the market caused by the infringement or to deterring future infringements.

AI FEEDBACK:
– Once the revocation attack fails against an independent claim, there is no practical legal interest in separately deciding a sufficiency attack on a dependent claim whose scope is already contained within that surviving independent claim.
– Article 75 UPCA makes final determination by the Court of Appeal the norm. A first-instance failure to reach infringement because it revoked the patent is not normally enough to justify remittal. Publication at the defendant’s expense is a separate remedy requiring a demonstrated legitimate interest, not an automatic consequence of infringement.
– Example: The Mannheim Local Division had revoked Rematec’s wood-chip-mill patent and therefore dismissed infringement without deciding it. The Court of Appeal upheld the patent, decided infringement itself, and ordered an injunction, recall, removal, and proportionate destruction, but refused the requested full-page newspaper and trade-publication notices because Rematec had not shown a legitimate publication interest.
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UPC_CFI_723/2025; 2026-2-12; Align Technology v Angelalign

ORIGINAL-KEYWORDS:
application for provisional measures; validity of patent; provisional injunction

ORIGINAL-HEADNOTE:
1. The fact that a defendant in an application for provisional measures does not agree to the claim interpretation applied in the examination does not mean that the burden of substantiation and proof for (in)validity should shift to the patent proprietor. On the other hand, the defendant is free to bring forward arguments and evidence as to why the claim should be interpreted differently and why this would lead to invalidity of the patent in suit and may thereby also rely on prior art that was already assessed by the examiner.
2. The mere fact that an applicant for provisional measures relies on combinations of claim 1 with sub-claims does not lead to the invalidity of claim 1 being more likely than not.
3. The assessment by the Court of Appeal (UPC_CoA_534/2024, UPC_CoA_683/2024, UPC_CoA_19/2025, Decision of 3 October 2025, mn. 190, 198 and 199 – Belkin v Philips) of the liability of a managing director applies even more so to a (financial) holding company. When no action going beyond the typical role of shareholder/financial holding is alleged, the application against this defendant has to be rejected.

AI FEEDBACK:
– In provisional-measures proceedings, the defendant retains the burden of developing a persuasive invalidity case. Disagreement with the examiner’s claim construction does not shift that burden to the patent proprietor, although the defendant may advance a different construction and reuse prior art already considered during examination.
– Pleading dependent-claim combinations as fallbacks does not itself signal that independent claim 1 is probably invalid. Corporate liability also requires conduct linked to infringement; ordinary ownership or financial-holding activity is insufficient.
– Example: Align sought a preliminary injunction over Angelalign’s “Live Now” treatment-planning feature and resulting aligners. The court granted relief against the operating and manufacturing entities, but rejected the application against Europe Angelalign Technology B.V. because no conduct beyond its normal role as shareholder and financial holding company was alleged.
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UPC_CoA_4/2026; 2026-2-11; Valeo v Bosch

ORIGINAL-KEYWORDS:
Appeal against an order of the judge-rapporteur ruling on a Preliminary objection; R. 19, R. 21, R. 220 RoP; Art. 73 UPCA.

ORIGINAL-HEADNOTE:
An order by the judge-rapporteur which allows a Preliminary objection but does not terminate the proceedings as regards one of the parties is neither a “decision” which allows the Preliminary objection within the meaning of the first sentence of Rule 21.1 RoP, nor an order which “rejects” the Preliminary objection within the meaning of the second sentence of Rule 21.1 RoP. In the case of such an order, which does not fall within any of the appeal scenarios referred to in Articles 73(1) and 73(2)(a) UPCA or Rule 220.1 RoP, the provisions of the second sentence of Rule 21.1 RoP shall apply by analogy.

AI FEEDBACK:
– Rule 21.1 RoP does not expressly address an order that allows a preliminary objection only by transferring the case internally while keeping every party in the proceedings. Such an interlocutory order is treated by analogy like a rejected preliminary objection for appeal purposes.
– The correct route is therefore Rule 220.2 RoP, which generally requires leave, rather than the immediate appeal routes for final decisions or specifically listed orders.
– Example: The Paris Central Division held that it lacked internal jurisdiction, transferred Valeo’s infringement action to the Düsseldorf Local Division, and changed the language to English without ending the case against any Bosch entity. The Court of Appeal held that Valeo correctly appealed under Rule 220.2 and declared the appeal admissible.
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UPC_CFI_171/2025; 2026-2-11; Philips v Belkin

ORIGINAL-KEYWORDS:
Res judicata; CE-marking; notification of infringement

ORIGINAL-HEADNOTE:
1. If a final decision on an infringement action has already been taken, for a second (consecutive) infringement action with respect to the same patent and between the same parties the question arises whether the subject-matter of this dispute is identical to that of the first action (res judicata). Since the subject-matter is determined essentially by the contested embodiment, the identity of the subject-matter is overcome if the contested embodiment changed and therefore new facts are given for the second action.
2. Where a CE-marking is a mandatory requirement for the sale of products in the European Union, companies issuing the respective EU declaration of conformity or acting as Authorized EU Representatives are liable as accessories for patent infringement caused by products covered by this declaration of conformity, if it constitutes joint, coordinated, and purposeful conduct by group companies.
3. In the context of FRAND-obligations, a party cannot successfully rely on a missing notification of infringement, if the party has already and prior to the filing of the infringement action entered negotiations with a patent pool regarding the use of the respective standard.

AI FEEDBACK:
– Res judicata in successive patent cases turns on whether the concrete accused embodiment is materially the same, not simply whether the patent and parties are unchanged. A modified product or standard implementation can create a new factual subject matter.
– Group companies may incur accessory liability through regulatory acts essential to EU sales, such as issuing declarations of conformity or acting as authorised EU representatives, when those acts form part of coordinated infringement. An implementer already negotiating for the relevant standard cannot rely on lack of a separate infringement notice to support a FRAND defence.
– Example: The earlier Philips-Belkin case concerned chargers implementing the older Qi standard, whereas this action targeted Qi2 devices including the Magnetic Power Profile. Belkin International issued the EU conformity declarations, Belkin B.V. acted as authorised representative, and the defendants had already engaged in patent-pool negotiations, so the court rejected the res judicata and notice arguments.
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UPC_CFI_274/2023; 2026-2-11; Fives ECL v REEL

ORIGINAL-KEYWORDS:
Anwendbares Recht; entgangener Gewinn wegen Preisreduktion; Angemessenheit des Angebots

AI-TRANSLATED-KEYWORDS:
Applicable law; lost profits due to a price reduction; reasonableness of the offer

ORIGINAL-HEADNOTE:
1. Auf einen Anspruch auf Schadensersatz wegen entgangenen Gewinns findet nationales Recht Anwendung, wenn der Sachverhalt vor Inkrafttreten des Einheitlichen Patentgerichts am 1. Juni 2023 abgeschlossen wurde.
2. Auch bei der Geltendmachung entgangenen Gewinns aufgrund einer Preisreduktion muss festgestellt werden können, dass nach dem gewöhnlichen Lauf der Dinge oder nach den besonderen Umständen mit Wahrscheinlichkeit der Gewinn gemacht worden wäre. Dabei ist das Angebot auf seine Angemessenheit unter Berücksichtigung aller Umstände zu überprüfen.
3. Die Möglichkeit eines Alternativangebotes des Verletzers ist in die Beurteilung einzubeziehen, wenn feststeht, dass der Auftraggeber auf jeden Fall ein weiteres Angebot angefordert hätte.
4. Da sowohl das nationale (deutsche) Recht zum Schadensersatz wie auch das EPGÜ auf der Richtlinie 2004/48/EG (Durchsetzungsrichtlinie) beruhen, dürften sich vorliegend bei der Beurteilung eines Anspruchs auf Schadensersatz wegen entgangenen Gewinns keine unterschiedlichen Ergebnisse ergeben.

AI-TRANSLATED-HEADNOTE:
1. National law applies to a claim for damages for lost profits where the relevant factual circumstances were completed before the Unified Patent Court commenced operations on 1 June 2023.
2. Even where lost profits are claimed on the basis of a price reduction, it must be possible to establish that, in the ordinary course of events or in the particular circumstances, the profit would probably have been earned. The reasonableness of the offer must be assessed in light of all circumstances.
3. The possibility that the infringer could have made an alternative offer must be included in the assessment where it is established that the customer would in any event have requested a further offer.
4. Because both national German damages law and the UPCA are based on Directive 2004/48/EC (the Enforcement Directive), the assessment of the lost-profits claim in this case would probably not produce different results under the two regimes.

AI FEEDBACK:
– Pre-UPC conduct remains governed by the applicable national damages law, but the causation and proof analysis for lost profits is closely aligned with Article 68 UPCA because both systems implement the Enforcement Directive.
– A claimant who reduced its bid price must show not only the amount of the reduction, but also that it probably would have earned that profit absent infringement and that the reduction was commercially reasonable. A realistic non-infringing counterfactual offer by the infringer can defeat causation.
– Example: Fives claimed EUR 6.5 million after reducing its bid for the Alba 6 project in response to REEL’s infringing offer. The court found that REEL could have submitted a cheaper non-infringing offer based on the Pavlodar model and that Fives had not shown it would probably have won or justified the size of its reduction; the damages claim was dismissed.
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UPC_CoA_930/2025; 2026-2-4; EOFlow v Insulet

ORIGINAL-KEYWORDS:
– Order imposing a penalty payment (Art. 82(4) UPCA, R. 354.4 RoP)
– Leave to appeal

ORIGINAL-HEADNOTE:
– Orders imposing a penalty payment (Art. 82(4) UPCA, R. 354.4 RoP) are not orders as specified in Art. 73(2)(a) UPCA or R. 220.1(c) RoP. The last sentence of R. 354.4 RoP reads: “(…) the Court may make an appropriate order which may be subject to an appeal pursuant to Rule 220.2.” This means that an appeal against those orders is only admissible if leave to appeal is granted by the Court of First Instance who issued the order, or the Court of Appeal granted leave to appeal after discretionary review according to R. 220.4 RoP.

AI FEEDBACK:
– A penalty-payment order enforcing a UPC injunction is not immediately appealable under the categories in Article 73(2)(a) UPCA or Rule 220.1(c) RoP. The party must first obtain leave under Rule 220.2, normally by requesting it from the Court of First Instance and, after refusal, seeking discretionary review.
– The Court of Appeal will not treat an ordinary appeal automatically as a discretionary-review application where the required first-instance leave request was never made.
– Example: After the Milan Central Division imposed a EUR 150,000 penalty and EUR 10,000 costs for EOFlow’s non-compliance with the insulin-pump injunction, EOFlow appealed without first requesting leave. The appeal against the penalty and costs, and the request for suspensive effect, were dismissed as inadmissible, while the separate confidentiality issues continued.
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UPC_CFI_1235/2025; 2026-2-26

ORIGINAL-HEADNOTE:
A judge-rapporteur whose procedural order or decision is subject to review by the panel pursuant to R. 333 of the RoP may, on the basis of the specific circumstances of the individual case and considering the interests of the parties to the proceedings, be entitled and, if applicable, also obliged to suspend their order or decision pursuant to R. 335 RoP. Such a suspension serves to ensure that the forthcoming order or decision of the seized panel (so-called “panel review”) is not interfered with by compliance with the order or decision, which could otherwise render the panel review ineffective.

AI FEEDBACK:
– The headnote recognises R. 335 RoP as a mechanism for preserving the practical effectiveness of a panel review under R. 333 RoP.
– The judge-rapporteur must assess the individual circumstances and balance the parties’ interests; suspension may be appropriate or even necessary where immediate compliance would have irreversible consequences.
– Example: after inspection of pleadings had initially been granted, Huawei requested review by the full panel. Because disclosure of the pleadings could not meaningfully be undone, access was postponed until the review proceedings had been finally concluded.
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#actionable UPC 829/2024; 2026-2-24

ORIGINAL-KEYWORDS:
Claim interpretation. Intermediate product. Numerical ranges. Composition claims. Sugar compositions. Marker molecule. Product-by-process features. Added matter. Inventive step of intermediate products. Inextricable link. Subsequent Auxiliary Requests. Revocation.

ORIGINAL-HEADNOTE:
1. The patentee is responsible for drafting claims that adequately define the subject matter for which protection is sought. This is particularly the case for composition claims containing numerical ranges of ingredients. For such claims, the skilled person may reasonably expect that the patentee is precise and diligent in specifying the components of a claimed composition.
2. Absent an inextricable link between a claimed composition and an inventive process for the production of a known end-product, no inventive step can be acknowledged for an otherwise non-inventive composition relied upon as an intermediate product.

AI FEEDBACK:
– The first headnote places the drafting risk on the patentee, especially where a composition claim uses numerical ranges: the claim must precisely identify which components and quantities define the protected product.
– The second headnote limits reliance on an inventive downstream process. An intermediate composition is not inventive merely because it may be used in such a process; the composition and process must be inextricably linked.
– Example: EP 2 611 800 claimed xylose-rich sugar compositions containing specified marker molecules and oligosaccharide ranges. The Court found added matter and lack of inventive step and revoked the patent because the claimed composition was not inseparably tied to an inventive process for producing the known end-product xylitol.
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UPC_CoA_10/2026; 2026-2-24

ORIGINAL-KEYWORDS:
Public access to the Register

ORIGINAL-HEADNOTE:
– Reasoned requests to the Registry for written pleadings and evidence (access to documents pursuant to R. 262.1(b) RoP), lodged at the Court of First Instance, shall be made to the relevant Division. Similarly, reasoned requests for written pleadings and evidence, lodged at the Court of Appeal, shall be made to the Court of Appeal.
– The provision that a decision will be taken by the judge-rapporteur after consulting the parties (R. 262.1(b) RoP) ensures that the judge adjudicating on access is familiar with the case file, separately for each instance.
– Such separate responsibility for the Court of First Instance and Court of Appeal is in line with the provisions on the court files in the Statute and the Registry Rules. The Statute makes a clear distinction between the register kept by the Registrar (Art. 23 UPCS) and the sub-registries kept by the Deputy-Registrar (Art. 25 UPCS). The latter concerns the records of the cases before the Court of First Instance. In accordance with this distinction, the RegR provide that the Deputy-Registrar shall keep the “case files of proceedings before the CFI” (R. 56 RegR), which include all pleadings and documents filed with the Court of First Instance (R. 59 RegR), and shall ensure access to such Court of First Instance case files by third parties (R. 66 RegR). For the management of case files before the Court of Appeal, the Registrar shall have those duties (R. 73 RegR).
– Re-lodging on appeal of documents lodged at the Court of First Instance is normally not called for since the Court of Appeal shall consult the file of the proceedings before the Court of First Instance pursuant to R. 222.1 RoP. Such consultation does not generate any copies of the documents into the file of the proceedings before the Court of Appeal.
– If a party, for reasons of its own, re-lodges documents on appeal, this not only represents additional work for parties and the Court alike, but it also means that members of the public can chose to request access to those documents from the Court of First Instance, the Court of Appeal, or if there is reason for it, both.
– A request for written pleadings and evidence must be specified and cannot be made in terms which would require the Court to search and select documents based on relevance criteria set up by the requesting party.

AI FEEDBACK:
– Access under R. 262.1(b) RoP is instance-specific: the relevant first-instance division controls its own file, while the Court of Appeal controls the appeal file.
– An applicant must identify the requested documents with sufficient precision. The Court is not required to search the file and select documents according to broad relevance criteria formulated by the applicant.
– Example: Gowling WLG obtained specified appeal pleadings after redaction of personal data, but its request for “all exhibits” concerning infringement or the balance of interests was dismissed as ambiguous; documents that had not been lodged in the appeal file could not be obtained from the Court of Appeal.
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UPC_CoA_883/2025, UPC_CoA_892/2025; 2026-2-24

ORIGINAL-KEYWORDS:
Rehearing (Art. 81(1) UPCA; R. 245 RoP); fundamental procedural defect

ORIGINAL-HEADNOTE:
Requests for a rehearing based on a fundamental procedural defect pursuant to Art. 81(1)(b) UPCA and R. 247(e and d) RoP (fundamental procedural defect)

AI FEEDBACK:
– Rehearing is an extraordinary remedy rather than a further appeal. It is reserved for a procedural defect so fundamental that it is intolerable for the legal system and affected the outcome.
– The Court need not expressly address every argument in detail, and disagreement with its assessment of arguments or evidence is not sufficient for rehearing.
– Example: Suinno challenged the EUR 300,000 security for costs and the subsequent default dismissal of its infringement action. The Court found that Suinno’s arguments had already been heard and that court orders must be complied with unless and until changed, so it rejected both the rehearing applications and the request for suspensive effect.
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#actionable UPC 337/2025; 2026-2-24

ORIGINAL-KEYWORDS:
Method claim. Added matter. Novelty. Disclosure of numerical ranges. Inventive step. Selection of starting point. Interdependency. Interdependent claim features. Inventive concept underlying the invention. Motivation. Pointer. Predictability. Reasonable expectation of success.

ORIGINAL-HEADNOTE:
1. A realistic starting point is typically a prior art disclosure as a whole. Absent a specific reason or pointer in the disclosure itself (or based on common general knowledge) to do so, the selection of a particular example composition as a “starting point”, merely because it happens to come “closest” to the claimed subject matter in terms of structural components, bears the risk that such selection itself already involves hindsight.
2. Where the features of a patent claim, in an interdependent way, even if they are not synergetic in the sense of having a special combination effect, provide a solution to the objective problem, ignoring these interdependencies and dividing the objective problem up into separate problems amounts to hindsight reasoning which is to be avoided in the assessment of inventive step.

AI FEEDBACK:
– The first headnote warns against cherry-picking the structurally closest example from a prior-art document unless the document or common general knowledge gives the skilled person a reason to start there.
– The second headnote requires the claimed features to be assessed as an interdependent combination. Splitting them into separate partial problems may reconstruct the invention with hindsight.
– Example: TCL relied on selected examples from D19, D20 and D27 against Corning’s alkali-free display-glass method. The Court found no pointer to combine tin fining, the claimed MgO range, the oxide ratios and a downdraw process, and therefore dismissed the revocation action.
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#actionable UPC_CFI_26/2025, UPC_CFI_375/2025; 2026-2-19

ORIGINAL-KEYWORDS:
Timeliness evidence of prior state of the Art; disclosure content of a commercial brochure; language of patent vs of the proceedings

ORIGINAL-HEADNOTE:
1. Due to the front-loaded approach of the UPC system R 25.1 RoP requires the counterclaim for revocation to contain an indication of the facts relied on (R 25.1 (c) RoP) and the evidence relied on, where available and an indication of any further evidence which will be offered in support (R 25.1 (d) RoP). The parties are under an obligation to set out their full case as early as possible (Preamble RoP 7, last sentence) and to provide all their legal and factual arguments, and any evidence supporting it in a timely manner. Whenever possible, Counterclaimant is obliged to submit its arguments, facts and attachments in its counterclaim of revocation. Submitting evidence for prior state of the Art or for prior use at a later time requires a reasonable justification regarding to the timeliness.
2. A commercial brochure, as a stand-alone piece of the prior art will be evaluated as such by the person skilled in the art. Already from the outset, obtaining the physical product that is being advertised in a commercial brochure is not a valid approach to establishing the disclosure of the stand-alone publication that the commercial brochure is.
3. According to Art 70 (1) EPC, the text of a European patent in the language of the proceedings shall be the authentic text in any proceedings before the European Patent Office and in any Contracting State. For EP415 the language of the patent is German. Although the language of the proceedings is English the court bases its interpretation und considerations on the German text of the patent in suit and reads in this way the English translations of the patents claims as it is published in EP 3 705 415 B1.

AI FEEDBACK:
– The UPC’s front-loaded procedure requires invalidity facts, attacks and supporting evidence to be presented with the counterclaim whenever possible; later prior-art or prior-use material needs a convincing justification for its timing.
– A brochure is assessed by what the brochure itself discloses. A later-obtained physical sample cannot enlarge the technical teaching of that publication.
– The authentic language of the granted patent controls claim interpretation even where the language of the proceedings is different.
– Example: Sabert relied on a Solut! brochure and later physical-product and prior-use material against EP 3 705 415. The Court assessed the brochure as a stand-alone disclosure, treated the later material restrictively, interpreted the German claim text, and ultimately dismissed both Messerle’s infringement action and Sabert’s counterclaim for revocation.
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UPC_CFI_1733/2025; 2026-2-17

ORIGINAL-KEYWORDS:
Change of the language of the proceedings – Art. 49 (5) UPCA and R. 323 RoP

ORIGINAL-HEADNOTE:
When deciding on an application to change the language of the proceedings to the language in which the patent was granted for reasons of fairness, all relevant circumstances must be considered. While having regard to the respective resources of the parties, the need for strategic coordination and technical support in a common working language for the purposes of the Defence has been identified as a decisive factor in the balancing of all interests. This takes into account the fact that the language primarily chosen is not only a financial burden on the Defendant(s), but also a disadvantage in view of strict time limits that must be met in UPC proceedings.

AI FEEDBACK:
– The fairness assessment under Art. 49(5) UPCA and R. 323 RoP is not limited to translation costs. It also covers the practical ability to coordinate strategy and technical input under the UPC’s strict deadlines.
– Relevant circumstances include the parties’ resources, the patent language, the technical field’s working language, the stage of the proceedings and the need for further translation arrangements.
– Example: most Xiaomi defendants were based in non-German-speaking countries, the mobile-communications evidence and ETSI specifications were in English, and the patent had been granted in English. The language of the proceedings was therefore changed from German to English without additional translation or interpretation conditions.
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UPC_CFI_351/2024, UPC_CFI_595/2024; 2026-2-11

ORIGINAL-KEYWORDS:
Publication; Art. 80 UPCA

ORIGINAL-HEADNOTE:
If a defendant has used its own website to create the impression that there has been no patent infringement, it may be justified under Art. 80 UPCA to not only allow the claimant to publish the Court’s decision, but also to require the defendant to publish the operative part of the decision on its website.

AI FEEDBACK:
– Publication under Art. 80 UPCA may serve a corrective function, not merely publicise the claimant’s success.
– Where a defendant used its own communication channel to assert non-infringement, requiring publication on that same channel can be a proportionate way to remove the false impression.
– Example: Katun stated on its website that it was confident its products for Canon applications were non-infringing. After finding infringement, the Court ordered the defendants to publish the operative part on their websites for one month and allowed Canon to publish the decision in five industry journals.
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#actionable UPC_CoA_8/2026; 2026-2-9

ORIGINAL-KEYWORDS:
Eintragung der einheitlichen Wirkung; Artikel 3 Absatz 2 der Verordnung Nr. 1257/2012

AI-TRANSLATED-KEYWORDS:
Registration of unitary effect; Article 3(2) of Regulation No 1257/2012

ORIGINAL-HEADNOTE:
Artikel 3 Absatz 1 der Verordnung Nr. 1257/2012 kann nicht dahingehend ausgelegt werden, dass die Eintragung der einheitlichen Wirkung für ein erteiltes europäisches Patent zulässig wäre, das die Benennung eines der teilnehmenden Mitgliedstaaten nicht umfasst.

AI-TRANSLATED-HEADNOTE:
Article 3(1) of Regulation No 1257/2012 cannot be interpreted as permitting the registration of unitary effect for a granted European patent that does not include the designation of one of the participating Member States.

AI FEEDBACK:
– Unitary effect requires the European patent to have been granted with the same claims for all participating Member States. The Regulation does not permit a partially unitary patent that excludes one current participating state.
– The Court applied the wording of Article 3(1) and rejected an interpretation that would create an exception not contained in the Regulation.
– Example: Papst Licensing’s patent did not designate Malta because the parent application predated Malta’s accession to the EPC. Its request for unitary effect excluding Malta was rejected, and the Court of Appeal dismissed the appeal.
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UPC_CFI_658/2025; 2026-2-2

ORIGINAL-KEYWORDS:
Cost decision; PI proceedings; proceedings on the merits; ceiling; no shift of costs

ORIGINAL-HEADNOTE:
1. Costs incurred in PI proceedings are reimbursable separately, even though the decision on the reimbursability of these costs is to be taken in a uniform cost procedure following the proceedings on the merits. Therefore, the ceilings for the PI proceedings and the proceedings on the merits must be determined separately (follow up to UPC_CFI_121/2025 (LD Düsseldorf), Decision of 22 April 2025, Headnote 2 – Ortovox v Mammut).
2. If the costs of the PI proceedings are reimbursable separately within a ceiling that applies specifically to these proceedings, this also means that the costs of both the PI proceedings and the main proceedings are capped by the applicable ceiling. It is inadmissible to mix the costs of the PI proceedings with those of the proceedings on the merits, or to shift them from one proceeding to the other, even if the results of the PI proceedings may be used in subsequent proceedings on the merits.
3. In the event of partial success, the applicable ceiling shall correspond to the proportion of success of the party seeking cost recovery. Accordingly, in a first step, the reimbursable representation costs must be determined based on the quota set by the Court in accordance with Art. 69 UPCA in conjunction with R. 118.5 RoP. In a second step, the ceiling, which is also reduced in accordance with the quota set by the Court, must then be applied.

AI FEEDBACK:
– PI proceedings and proceedings on the merits remain separate for cost-ceiling purposes even where reimbursement is decided in one later cost procedure. Unused capacity under one ceiling cannot be transferred to the other proceeding.
– In cases of partial success, both the recoverable representation costs and the applicable ceiling are reduced according to the same success quota; the quota is applied before the reduced ceiling.
– Example: 10x Genomics was entitled to recover 70% of its costs. The Court therefore reduced the EUR 200,000 PI ceiling to EUR 140,000 and the EUR 400,000 merits ceiling to EUR 280,000 instead of pooling the two ceilings.

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UPC_CoA_930/2025; 2026-1-29; EOFlow v Insulet

ORIGINAL-KEYWORDS:
– R. 262A RoP
– Art. 67 UPCA
– R. 191 RoP
– Communication of confidential information due to a court order or decision

ORIGINAL-HEADNOTE:
There is no implicit limitation on the use of information received as a result of the other party’s compliance with an order to communicate information pursuant to Art. 67 UPCA and R. 191 RoP. It is necessary to file a confidentiality request with regard to information which has to be communicated according to a Court order or decision (see CoA 14 October 2025, UPC_CoA_699/2025, Kodak v Fujifilm, para. 45). R. 262A RoP applies at least mutatis mutandis.

AI FEEDBACK:
– The Court distinguishes protection against public access under R. 262.2 RoP from restrictions on the opposing party’s use of information. An order requiring information to be communicated does not itself create an implied purpose limitation or confidentiality obligation.
– A party seeking to restrict the recipient’s use of information communicated under Art. 67 UPCA and R. 191 RoP must make a specific confidentiality application. R. 262A RoP applies at least by analogy to such court-ordered communications.
– Example: EOFlow had supplied Insulet with accounting and distribution information under earlier court orders without obtaining a use restriction. EOFlow could not later rely on an implied limitation to prevent Insulet from using that information in the penalty-payment proceedings, so its request to restrict Insulet’s use was denied.
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UPC_CoA_631/2025, UPC_CoA_632/2025; 2026-1-26; Ericsson v ASUS

ORIGINAL-KEYWORDS:
Appeal; application for the protection of confidential information.

ORIGINAL-HEADNOTE:
1. When deciding on the measures for the protection of confidential information and assessing their proportionality, the Court must take into account the need to ensure the right to an effective remedy and to a fair trial, the legitimate interests of the parties and, where appropriate, of third parties, and any potential harm for either of the parties, and, where appropriate, for third parties, resulting from the granting or rejection of such measures.
2. In the event that one of the parties is a legal person, that party should be able to propose a natural person or natural persons who ought to form part of that circle of persons entitled to have access so as to ensure proper representation of that legal person, subject to appropriate judicial control to prevent the objective of the restriction of access to evidence and hearings from being undermined.
3. Whether the person proposed by a party may be granted access to the confidential information must be determined on the basis of the relevant circumstances of the case, including the role of that person in the proceedings before this Court, the relevance of the confidential information to the performance of that role and the trustworthiness of the person in keeping the information confidential.
4. The fact that a person is an employee of a party is, as a general rule, not sufficient to deny access to that person. The exclusion of employees would severely restrict a party’s freedom to choose who will represent it in the proceedings. Furthermore, an employee of a party will often be better placed to present the party’s view, provide and review relevant information and instruct the representatives than persons external to the party’s organization. Consequently, access for a party’s employee will often be essential to ensure compliance with the right of that party to an effective remedy and to a fair trial. For that reason, and as a general rule, the interest of the party in having full access for at least one of its employees outweighs the interests of the applicant, even if the imposition of an “External Eyes Only” regime would be preferable from the perspective of safeguarding confidentiality.
5. Furthermore, where the confidential information concerns a licence agreement between a party and a third party, the potential harm for this third party, resulting from allowing access to an employee of the other party to the proceedings, may be mitigated by requiring that employee to refrain from involvement in patent licensing negotiations with the third party for a certain period. Such a bar prevents the employee from using such confidential information in these negotiations, whether intentionally or not. It thereby facilitates compliance with the confidentiality regime and provides all parties with a greater degree of legal certainty, as the involvement of the employee in negotiations is easier to establish than the employee’s use – inadvertent or otherwise – of the confidential information in such negotiations.

AI FEEDBACK:
– Confidentiality measures under R. 262A RoP require a concrete proportionality assessment. The Court must balance secrecy and possible harm to parties or licence counterparties against the opposing party’s rights to an effective remedy, a fair trial and informed participation in the case.
– A corporate party should normally be allowed to nominate at least one employee for the confidentiality circle. Employment by the party is not, by itself, a reason for exclusion; the Court instead examines that person’s function, need for the information and reliability.
– Risks arising from access to third-party licence agreements can be addressed by targeted safeguards rather than a complete External Eyes Only regime, particularly a temporary licensing bar.
– Example: ASUS needed an employee to examine Ericsson’s confidential licence agreements and the data used in the parties’ FRAND analysis. The Court allowed one employee from each party to have access but prohibited those employees from participating in patent-licensing negotiations with the relevant counterparties for five years.
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UPC_CoA_755/2025, UPC_CoA_757/2025, UPC_CoA_791/2025, UPC_CoA_793/2025; 2026-1-26; Sun Patent v Vivo

ORIGINAL-KEYWORDS:
Appeal; application for the protection of confidential information, R 262A RoP; legal team, internal support staff.

ORIGINAL-HEADNOTE:
(i) When deciding on the measures for the protection of confidential information and assessing their proportionality, the Court must take into account the need to ensure the right to an effective remedy and to a fair trial, the legitimate interests of the parties and, where appropriate, of third parties, and any potential harm for either of the parties, and, where appropriate, for third parties, resulting from the granting or rejection of such measures.
(ii) In the event that one of the parties is a legal person, that party should be able to propose a natural person or natural persons who ought to form part of that circle of persons entitled to have access so as to ensure proper representation of that legal person, subject to appropriate judicial control to prevent the objective of the restriction of access to evidence and hearings from being undermined.
(iii) Whether the person proposed by a party may be granted access to the confidential information must be determined on the basis of the relevant circumstances of the case, including the role of that person in the proceedings before this Court, the relevance of the confidential information to the performance of that role and the trustworthiness of the person in keeping the information confidential.
(iv) The fact that a person is an employee of a party is, as a general rule, not sufficient to deny access to that person. The exclusion of employees would severely restrict a party’s freedom to choose who will represent it in the proceedings. Furthermore, an employee of a party will often be better positioned to present the party’s view, provide and review relevant information and instruct the representatives than persons external to the party’s organization. Consequently, access for a party’s employee will often be essential to ensure compliance with the right of that party to an effective remedy and to a fair trial. The interest of the party in having full access for, at least, one of its employees therefore, as a general rule, outweighs the interests of the applicant, even if imposing an ‘External Eyes Only’ regime would be preferable from the perspective of safeguarding confidentiality.
(v) Furthermore, where the confidential information concerns a licence agreement between a party and a third party, the potential harm for this third party resulting from allowing access to one or more employees of the other party to the proceedings, may be mitigated by requiring said employee(s) to refrain from involvement in patent licensing negotiations with the third party for a certain period. Such a bar prevents said employee(s) from using such confidential information in these negotiations, whether intentionally or not. It thereby facilitates compliance with the confidentiality regime and provides all parties with a greater degree of legal certainty, as the involvement of the employee(s) in negotiations is easier to establish than the employee’s use – advertent or otherwise – of the confidential information in such negotiations.
(vi) Nothing in the UPC Agreement nor in the Rules of Procedure provides for the liability of the UPC representative of a party in the event of a breach of a duty of confidentiality ordered by the Court under R. 262A RoP. Rather, in the event of a breach of the confidentiality obligation ordered by the Court, a penalty payment may be imposed on a party to the proceedings.
(vii) Although it is the party that may be sanctioned for non-compliance with the confidentiality obligation ordered by the Court through the imposition of a penalty payment, and not the party’s legal representative in its own – whether professional or personal – capacity, it does not release said representative from its rights and obligations under the UPC Agreement and the Rules of Procedure. Said obligations include the requirements to comply with the code of conduct adopted pursuant to R. 290.2 RoP as well as the requirements of the proper administration of justice, failing which the Court may exclude said representative from the proceedings by way or order under the conditions set forth under R. 291.1 RoP.

AI FEEDBACK:
– The first five headnotes apply the same proportionality approach as in Ericsson v ASUS: a corporate party normally needs meaningful internal participation, and access by an employee should be assessed case by case rather than excluded categorically.
– A licensing bar can protect third-party licence information while preserving the party’s ability to understand and litigate a FRAND dispute. The restriction should be tailored to the relevant counterparties and an appropriate period.
– The final two headnotes separate the party’s procedural liability from the professional duties of its representative. A penalty for breach of a confidentiality order is imposed on the party, not personally on its UPC representative, although the representative remains responsible for complying with professional and procedural duties and may be excluded for serious misconduct.
– Example: Sun Patent relied on comparable licence agreements in two FRAND actions and sought to exclude Vivo employees. The Court allowed three designated Vivo employees access subject to a two-year licensing bar, clarified that the legal team includes internal law-firm support staff bound by the order, and removed the first-instance provision imposing personal liability on Vivo’s representative.
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UPC_CFI_1064/2025; 2026-1-26; Bobst Manchester v Nordmeccanica

ORIGINAL-KEYWORDS:
Change of the language of the proceedings – Art. 49 (5) UPCA and R. 323 RoP

AI FEEDBACK:
– A language-change request under Art. 49(5) UPCA and R. 323 RoP is decided through an overall fairness assessment. Relevant factors include the language of the technology and evidence, the parties’ nationality and working languages, their ability to coordinate internally, the stage of the case and any effect on efficiency or delay.
– When the interests remain evenly balanced, the defendant’s position prevails because the claimant generally chose the forum and filing time, whereas the defendant must prepare its defence under strict procedural deadlines.
– Example: Bobst, an English company, brought a German-language infringement action against the Italian company Nordmeccanica concerning an English-language patent. Because neither party used German internally, English predominated in the technical material and the request was made at an early stage, the Court changed the language to English without requiring translations.
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UPC_CFI_808/2025; 2026-1-23; Guardant Health v Sophia Genetics

ORIGINAL-KEYWORDS:
Provisional measures. Unreasonable delay. R. 211.4 RoP. Added matter. Sufficient degree of certainty-Infringement- Burden of proof. R. 211.2 RoP.

ORIGINAL-HEADNOTE:
1) Unreasonable delay under R. 211.4 RoP: In the present case, a three-month period constitutes a reasonable delay to prepare the application for provisional measures by gathering the necessary evidence, given that the case involves several patents and a complex and sophisticated technology.
2) Added matter (divisional patent): It is decisive whether all the elements are directly and unambiguously derivable from the patent as originally filed (in the present case: the PCT application) or whether the latter is used as some kind of reservoir from which scattered fragments can be combined, in which case there is a whole series of different ‘inventions’ included in the PCT application.
3) Added matter: From the selections that have been made without any clear indication in the earlier application, the Court concludes that the invention as now worded in the granted claim cannot directly and unambiguously be derived from the patent as filed.
4) Demonstration of an infringement with a sufficient degree of certainty (R. 211.2 RoP): The burden of proof for the alleged infringement lies with the party invoking it. Applicant cannot rely solely on the disputed information from a press release to demonstrate how Defendants’ software processes data. Additional in-depth investigations into how Defendants’ platform operates or more technical documentation on the ‘accused software’ would have been necessary.

AI FEEDBACK:
– The urgency assessment under R. 211.4 RoP starts when the applicant has, or should have obtained with due diligence, enough facts and evidence to bring a provisional-measures application with a reasonable prospect of success. Complexity, the number of patents and the accessibility of technical evidence affect what preparation period is reasonable.
– For a divisional patent, every claimed combination must be directly and unambiguously derivable from each relevant earlier application. The original PCT application cannot be treated as a reservoir from which isolated features and alternatives are assembled without a pointer to the specific combination.
– At the provisional-measures stage, validity and infringement must be established with the required degree of certainty. The applicant carries the burden of proving how the accused product or software implements the claim; marketing statements or a general press release are not a substitute for technical evidence.
– Example: Guardant obtained a key MSK-DDM manual only in July 2025 and filed on 29 August 2025, so the three-month preparation period was reasonable. Nevertheless, the Court rejected provisional measures because two asserted patents were more likely than not invalid for added matter and the evidence, largely a press release, did not sufficiently show how Sophia Genetics’ software processed data under the third patent.
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UPC_CFI_1506/2025; 2026-1-20; Nagravision v Pinterest

ORIGINAL-KEYWORDS:
Change of the language of the proceedings – Art. 49 (5) UPCA and R. 323 RoP

ORIGINAL-HEADNOTE:
– While the domiciliation of parties in countries where the language of the proceedings initially chosen is an official language must be taken into account to decide on an application pursuant to R. 323 RoP, due consideration shall also be given to the need of several Defendants to communicate and coordinate for the purposes of the dispute. The speed and efficiency of this coordination is necessarily affected if the proceedings are not conducted in their usual working language. This drawback is of particular importance in identifying a fairness issue considering the strict time limits set by the UPC rules of procedure.

AI FEEDBACK:
– Domicile and official-language connections are relevant to a request under R. 323 RoP, but they are not decisive in isolation. The Court must also assess how the selected language affects the defendants’ practical ability to coordinate, obtain instructions and prepare a defence.
– The coordination burden has particular weight where several companies in an international group are defendants, because UPC time limits are strict and translation through a language not used internally can slow decision-making.
– Example: the Pinterest defendants were established in Germany, Ireland and the United States, but their common group working language was English. Although German was relevant because Pinterest Germany was domiciled in Germany and Nagravision was based in multilingual Switzerland, the Court changed the proceedings from German to English so the defendants could coordinate efficiently without delaying the case.
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UPC_CFI_350/2025; 2026-1-12; WhiteWater West Industries v American Wave Machines

ORIGINAL-KEYWORDS:
decision by default

ORIGINAL-HEADNOTE:
Rule 355 of the Rules of Procedure (‘RoP’)

AI FEEDBACK:
– R. 355 RoP allows a decision by default only after the Court verifies the procedural prerequisites: a request by the non-defaulting party, effective and timely service, expiry of the relevant deadline, and facts that justify the requested remedy. Default does not mean that the claim is granted automatically.
– The Court retains discretion and may confine its examination to the facts and grounds needed to support the remedy rather than deciding every invalidity attack pleaded in the original action.
– Example: American Wave was served with WhiteWater’s revocation action on 8 May 2025 but filed no defence by the 8 July deadline. The Court nevertheless examined the inventive-step case and found claim 1 obvious starting from D1 combined with D3 before partially revoking EP 2 728 089 by default.
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UPC_CoA_328/2025; 2026-1-9; Juul Labs v NJOY

ORIGINAL-KEYWORDS:
Court fees, reimbursement

ORIGINAL-HEADNOTE:
R. 370.9 (b) RoP has been amended from 1 January 2026, providing for reimbursement of court fees with 50 % in case of the withdrawal of an action before the closure of the written procedure instead of, as previously, 60 %. The entry into force provides that amendments shall enter into force on 1 January 2026. The amendments apply only to those actions and applications filed after 31 December 2025.

AI FEEDBACK:
– The amendment to R. 370.9(b) is prospective. The reduced 50% refund applies only to actions and applications filed after 31 December 2025; an earlier-filed appeal remains governed by the previous 60% refund rule when withdrawn before the written procedure closes.
– Withdrawal of an appeal is permitted where no final decision has been issued and the other party has no legitimate interest in obtaining a judgment. As a general rule, the withdrawing appellant is treated as the unsuccessful party for costs.
– Example: after the EPO Board of Appeal dismissed Juul Labs’ parallel appeal and NJOY consented to withdrawal, the UPC appeal was closed. Because UPC_CoA_328/2025 had been filed before 1 January 2026, Juul Labs received a 60% refund of the appeal fee and was ordered to bear NJOY’s appeal costs.
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UPC_CoA_257/2025; 2026-1-9; VMR Products v NJOY

ORIGINAL-KEYWORDS:
Court fees, reimbursement

ORIGINAL-HEADNOTE:
According to R. 370.9(b)(iii) RoP as it read until 31 December 2025, in the event of the withdrawal of the action (R. 265 RoP), the party obliged to pay the Court fees shall receive a refund of 20 % if the action is withdrawn before the closure of the oral procedure. This provision has been deleted following the amendments to R. 370.9 RoP. The entry into force provides that amendments shall enter into force on 1 January 2026. The amendments apply only to those actions and applications filed after 31 December 2025.

AI FEEDBACK:
– The former R. 370.9(b)(iii) continues to govern proceedings filed before 1 January 2026. Under that version, withdrawal after the written stage but before closure of the oral procedure generated a 20% court-fee refund, even though this refund category was deleted for later-filed cases.
– The temporal rule turns on when the action or application was filed, not on the date of the withdrawal decision.
– Example: VMR Products withdrew its appeal after the parties had already been summoned to an oral hearing for 9 February 2026. Because the appeal had been filed under the pre-2026 rules and was withdrawn before the oral procedure closed, the Court refunded 20% of the appeal fee and ordered VMR Products to bear NJOY’s appeal costs.
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UPC_CoA_237/2025; 2026-1-9; Juul Labs v NJOY

ORIGINAL-KEYWORDS:
Court fees, reimbursement

AI FEEDBACK:
– The amendment reducing the pre-closure-of-written-procedure refund from 60% to 50% applies only to actions and applications filed after 31 December 2025. Earlier-filed appeals retain the previous refund percentage.
– A withdrawing appellant normally bears the appeal costs as the unsuccessful party. The limited exception for an unprovoked revocation action followed by an immediate surrender did not apply because Juul Labs had defended the patent in the first-instance proceedings.
– Example: the EPO Board of Appeal had dismissed Juul Labs’ parallel appeal concerning EP 3 430 921, NJOY consented to withdrawal, and the UPC proceedings were closed. Since the UPC appeal pre-dated 1 January 2026, Juul Labs obtained a 60% fee refund but had to pay NJOY’s reasonable and proportionate appeal costs.
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UPC_CoA_5/2025; 2026-1-9; Juul Labs v NJOY

ORIGINAL-KEYWORDS:
Court fees, reimbursement

AI FEEDBACK:
– The Court applies the version of R. 370.9(b) in force when the action or application was filed. The 2026 amendment therefore does not reduce the refund available in an appeal filed before the amendment’s effective date.
– Consent by the respondent removed any legitimate interest in a judgment on the merits, allowing the withdrawal. The appellant remained the unsuccessful party for the costs of the appeal.
– Example: after the EPO Board of Appeal upheld the revocation of EP 3 498 115 by dismissing Juul Labs’ appeal, Juul Labs withdrew UPC_CoA_5/2025 with NJOY’s consent. The Court closed the case, awarded a 60% refund under the old rule and ordered Juul Labs to bear NJOY’s appeal costs.
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UPC_CFI_730/2025; 2026-1-5; Nera Innovations v Xiaomi

ORIGINAL-KEYWORDS:
Application for a cost decision, Rule 151 RoP; reasonable cost for representation, R. 152 RoP; Article 48(4) UPCA; appeal proceedings pursuant Rule 220.2 RoP; ceiling of reimbursable costs.

ORIGINAL-HEADNOTE:
1. In principle, a party is always entitled to be represented before the EPO by a legal representative and a patent attorney jointly, i.e. by two authorised representatives, Art. 48(4) UPCA.
2. However, appeal proceedings under Rule 220.2 RoP concerning a specific procedural issue do not require the involvement of more than one authorised representative, R. 151.1 R.P.
3. The upper limit of reimbursable representation costs cannot be used for the assessment of costs in appeal proceedings under R. 220.2 R.P. concerning procedural sub-issues.
4. A party to the dispute must always be allowed to participate in an oral hearing before the UPC with at least one natural person and to incur the corresponding travel expenses.
5. Even if a party is successful in proceedings for the assessment of costs under Rule 150 of the RoP, it must generally bear its own costs incurred in the cost proceedings.

AI FEEDBACK:
– A party may generally choose joint representation by a lawyer and a patent attorney, but reimbursement depends on what was reasonably necessary for the particular proceeding. A narrow R. 220.2 appeal about a procedural issue does not automatically justify the cost of several representatives.
– The general ceiling for reimbursable representation costs is only a maximum safeguard; it does not make otherwise unnecessary expenditure reasonable and is not an appropriate valuation tool for a procedural sub-issue appeal.
– Reasonable travel costs for at least one representative and one natural person attending the oral hearing may be recovered. By contrast, the Rules do not normally provide a further costs award for the summary cost-assessment proceeding itself.
– Example: the appeal concerned only whether the claim could be served on Xiaomi’s Chinese entities through the German affiliate. The defendants used a team of three lawyers, but the Court treated one lawyer as sufficient and reduced the representation costs by two thirds, while allowing the proportionate travel costs for one lawyer and one company participant.

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#actionable UPC_CFI_315/2024; 2026-1-28; Labrador Diagnostics v bioMérieux

ORIGINAL-KEYWORDS:
Bifurcation; Central Division; amended claims

ORIGINAL-HEADNOTE:
1. The Local Division is bound to the new wording of the claims due to the amendment of the patent in suit by a decision of the Central Division in a bifurcated case.
2. In a bifurcated case in which the Court does not find on infringement, the question of validity is no longer decisive for the infringement action.

AI FEEDBACK:
– In bifurcated UPC proceedings, the infringement division must apply the claims in the form determined by the Central Division; it cannot revert to the granted wording or reconstruct a broader version.
– Here, the Milan Central Division’s amendment made a “device” comprising both the reagent-unit array and the user-applied sample unit a structural claim requirement. The bioMérieux instruments had reagent strips and sample vials in separate locations without the claimed connecting device, so the Düsseldorf Local Division found no infringement.
– Once infringement failed, questions concerning entitlement and the patent’s validity, including the EPO’s preliminary view, were no longer decisive. For example, the claimant’s attempt to treat the spatially separated sample vial and reagent strip as conceptually linked could not replace the missing structural feature.
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UPC_CoA_917/2025; 2026-1-26; Merz v Viatris Santé

ORIGINAL-KEYWORDS:
Request for confidentiality

ORIGINAL-HEADNOTE:
– According to case-law, only R. 262A RoP allows the Court to restrict the use of confidential information by the opposing party and its representatives. A request under R. 262.2 RoP that certain information of written pleadings or evidence be kept confidential does not automatically grant provisional protection against the disclosure of information by the other party (UPC_CoA_70/2025, order of 1 August 2025, Strabag vs Swarco et al, paras 19 and 20). Furthermore, and as set out repeatedly, a decision on a request according to R. 262.2 RoP is generally not made until a reasoned request from the public under R. 262.1(b) RoP is lodged. This is because requests under R. 262.2 RoP are made in relation to future requests for access to information by the public, not in relation to the other parties to the proceedings.
– An Application for a confidentiality order, with or without establishment of a confidentiality club, under R. 262A RoP shall be made at the same time as lodging a document containing the information or evidence. In this case the information should be uploaded as HC (highly confidential). Where the information is of such confidential nature that only a limited number of people should be allowed access to it, a so-called confidentiality club can be set up in accordance with R. 262A.6 RoP. Alternatively, it may – and must – be subject of a R. 262A RoP request if it is requested that the other party is only limited in its use of the confidential information in that it shall only be used for the purpose of the legal proceedings and may not be disclosed to third parties.
– As is apparent from R. 262A.3 RoP, a party’s written submissions and evidence are, in principle, made directly accessible to the other party without any restrictions as to its use or recipients, unless a simultaneous request is made under R. 262A.1 RoP when the document is lodged, or a statement is made that this information is protected under a previous order pursuant to R. 262A RoP either at first instance or on appeal.
– Absent an explicit request for a confidentiality order, or a statement that this information is protected under a previous order pursuant to R. 262A RoP either at first instance or on appeal, the Court will not treat a document as potentially containing confidential information in the sense of R. 262A RoP.
– This also applies if the document was uploaded by that party under HC code. Uploading a document under this code prevents access to it by the other party. A legal basis for uploading a document under HC code is lacking, and is also contrary to the legitimate interest of the other party to have unrestricted access to the documents lodged by the other party without delay, if there is no simultaneous application pursuant to R. 262A RoP.
– In such a situation, the Court will therefore as a matter of routine change the code to M to make it immediately available to the other parties to the procedure.

AI FEEDBACK:
– Rule 262.2 RoP addresses possible future access by the public; it does not restrict the opposing party’s access to or use of evidence. Protection against the opposing party requires a simultaneous application under Rule 262A RoP.
– Merely selecting the HC upload code has no independent legal effect. Without a Rule 262A application or reliance on an existing confidentiality order, the Court will normally change the code to M so the other party receives immediate access.
– For example, Merz uploaded Exhibit 823 as HC and requested only that it be withheld from the public under Rule 262.2. Because no Rule 262A application was filed, the Court declined to decide the public-access request at that stage and did not treat the exhibit as protected against Viatris Santé.
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Case number not stated in the anonymized decision; 2026-1-26; EPLC Rules

ORIGINAL-KEYWORDS:
EPLC Rules

ORIGINAL-HEADNOTE:
– The one-year time period set out in Rule 12.1 of the EPLC Rules is not discriminatory.

AI FEEDBACK:
– Rule 12.1 EPLC Rules creates a substantive transitional route by which certain specifically listed, non-accredited courses temporarily count as an appropriate qualification. It is not merely a procedural deadline for filing a registration request.
– The one-year limitation was held objectively justified by the aim of ensuring qualified representation while making enough representatives available when the UPC began operating. It applied to all European Patent Attorneys, and other qualification routes remain available.
– For example, the applicant relied in August 2025 on a “Kandidatenkurs Fischbachau” certificate from 1989. Because the transitional period had expired on 3 June 2024, that course no longer established the required qualification, and the petition for review was rejected.
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UPC_CFI_999/2025; 2026-1-26; ALD France v Nanoval

ORIGINAL-KEYWORDS:
Strohmann, Parteiidentität im Sinne von Art. 33 Abs. 4 S. 2 EPGÜ

AI-TRANSLATED-KEYWORDS:
Straw man; identity of parties within the meaning of Art. 33(4), second sentence, UPCA

ORIGINAL-HEADNOTE:
1. Für das Vorhandensein eines eigenen Interesses an einer Nichtigkeitsklage neben der bereits erhobenen Nichtigkeitswiderklage eines verbundenen Unternehmens ist eine eigene Geschäftstätigkeit des Klägers maßgeblich. Auf den Grad der Verbindung der betroffenen Unternehmen kommt es dabei nicht an. Verbundene Unternehmen sind nicht schon dann „dieselbe Partei“ im Sinne von Art. 33 Abs. 4 S. 2 EPGÜ, wenn es sich um Mutter- und Tochterunternehmen handelt. Auch der Grad der Kontrolle ist kein maßgebliches Kriterium, soweit das betroffene Unternehmen eine eigenständige Geschäftstätigkeit ausübt.
2. Die Prüfung der Einheitlichkeit des Unternehmens im Rahmen einer Kartellklage hat andere Voraussetzungen und hat anderweitige Interessen zu berücksichtigen, so dass die dort entwickelten Grundsätze nicht übertragbar sind.

AI-TRANSLATED-HEADNOTE:
1. For the existence of a claimant’s own interest in a revocation action alongside a counterclaim for revocation already brought by an affiliated company, the claimant’s own business activity is decisive. The degree of affiliation between the companies concerned is irrelevant. Affiliated companies are not “the same party” within the meaning of Article 33(4), second sentence, UPCA merely because they are parent and subsidiary companies. The degree of control is likewise not a relevant criterion where the company concerned conducts independent business activities.
2. The assessment of the unity of an undertaking in the context of an antitrust action is subject to different requirements and takes account of different interests, so the principles developed there are not transferable.

AI FEEDBACK:
– The “same parties” exception in Article 33(4), second sentence, UPCA requires genuine party identity or interests aligned so completely that a judgment against one entity would bind the other. Corporate affiliation or control alone is insufficient where each company conducts its own business.
– A straw-man finding concerns an entity that exists only formally and lacks real business activity, assets or employees. ALD France had substantial turnover, assets and personnel, which supported an independent interest in challenging the patent.
– Competition-law concepts treating a corporate group as one economic unit serve different purposes and cannot automatically determine party identity under the UPC jurisdiction rules.
– For example, ALD France was allowed to pursue its central revocation action even though its German parent had already filed a revocation counterclaim in Munich; the request to dismiss or stay the Paris action was rejected.
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#actionable UPC_CFI_702/2024 and UPC_CFI_369/2025; 2026-1-16; IMC Créations v Mul-T-Lock

ORIGINAL-KEYWORDS:
Brevet unitaire modifié, Date d’effet de la limitation, Brevet européen hors JUB maintenu tel que délivré, Personne du métier, Connaissances générales communes et documents accessibles au public.

AI-TRANSLATED-KEYWORDS:
Amended unitary patent, Effective date of the limitation, European patent outside the UPC maintained as granted, Person skilled in the art, Common general knowledge and publicly accessible documents.

ORIGINAL-HEADNOTE:
1. Le brevet européen devenu unitaire et modifié de manière inconditionnelle, prend effet à la date de délivrance du brevet européen.
2. La contrefaçon de la part nationale du brevet européen délivré par un Etat hors JUB, doit être appréciée au regard du brevet tel que délivré initialement. Le brevet en litige présente un risque non négligeable d’annulation, par les juridictions de l’Etat de délivrance, après modification inconditionnelle du brevet unitaire.
3. La personne du métier n’est qu’un simple exécutant. Un document non accessible au public n’appartient pas aux connaissances générales communes.

AI-TRANSLATED-HEADNOTE:
1. A European patent with unitary effect that is unconditionally amended takes effect, as amended, from the date of grant of the European patent.
2. Infringement of the national part of a European patent in a state outside the UPC must be assessed by reference to the patent as originally granted. Following an unconditional amendment of the unitary patent, the patent in suit faces a non-negligible risk of revocation by the courts of the state concerned.
3. The person skilled in the art is merely an implementer. A document that was not accessible to the public does not form part of common general knowledge.

AI FEEDBACK:
– The unconditional limitation of the unitary patent was treated as effective retroactively from the patent’s grant date, not merely from the date on which the proprietor filed the amended claims.
– The Swiss national part remained in its originally granted form because the UPC amendment affected only the patent with unitary effect. The limitation used to overcome the validity attack created a serious, non-negligible risk that the unamended Swiss part was invalid, so the UPC rejected the Swiss infringement claims.
– The skilled person was treated as capable of routine implementation but not inventive reconstruction. Accordingly, a non-public industrial drawing could not be used as common general knowledge.
– For example, the MVP 1000 lock was held to infringe amended claims 1 and 6 in the UPC territories from 1 November 2023, while all claims based on the Swiss part of the patent were dismissed.
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UPC_CFI_100/2024 and UPC_CFI_411/2024; 2026-1-15; Ona Patents and Ekahau v Google

ORIGINAL-KEYWORDS:
Register, proprietor, Rule 25 RoP, Rule 42 RoP, Rule 8.6 RoP; direct infringement, indirect infringement

ORIGINAL-HEADNOTE:
1. The Rules of Procedure show that in constellations where a claimant wants to obtain a decision to remove the effects of a granted patent (be it the validity of the patent or the declaration that a specific act does not constitute an infringement) the law prioritizes the registration over the entitlement. Ratio legis is the legal certainty for the claimant. It does not have the burden to “search” the entitled proprietor.
2. If a product consists of different components, the alleged infringing product must show every claimed component. Cases where only certain features of a product are infringed may be examples for an indirect infringement (Art. 26 UPCA), but not for direct infringement (Art. 25 UPCA).

AI FEEDBACK:
– In revocation proceedings and actions seeking to remove a patent’s effects, the person entered in the patent register is the relevant proprietor for procedural purposes. A challenger is not required to investigate whether another entity may be substantively entitled to the patent.
– In this case, Ekahau was registered when Google filed the counterclaim, while Ona became registered during the proceedings. The register change determined which counterdefendant remained the proprietor; the unresolved entitlement dispute was immaterial because the Court found no infringement.
– Direct infringement of a product claim requires the accused product itself to contain every claimed component. A missing component located only on another product may support a properly pleaded indirect-infringement case, but not direct infringement.
– For example, the challenged Google phones and tablets did not contain the claimed controller, which was located on accessories such as earphones or watches. The direct-infringement claim therefore failed, and the late attempt to add indirect infringement was not admitted.
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UPC_CFI_628/2024 and UPC_CFI_125/2025; 2026-1-13; Emboline v AorticLab

ORIGINAL-HEADNOTE:
1. Patent infringement is not excluded by the fact that a device is normally operated in a non-infringing manner and customers therefore do not regularly make use of the patented teaching, as long as the use of the patented teaching remains possible when using the device. In the case of a medical device, however, the possibility of an irregular but patent-compliant use can only be considered as patent infringement if such use is in line with professional practice and the recognised rules of medical science.
2. The unconditional transition from a counterclaim to a dependent counterclaim, which is dependent on the occurrence of an intra-procedural condition (i.e. a finding of patent infringement by the Court), means that the counterclaim is limited in accordance with Rule 263.3 of the Rules of Procedure (RoP).
3. If, in accordance with the counterclaimant’s request, no decision is made on the Counterclaim, the counterclaimant must bear the costs for the counterclaim.

AI FEEDBACK:
– A device may infringe even when its usual operating mode is non-infringing, but for medical devices a merely imaginable use counts only when it is professionally acceptable and consistent with recognised medical standards.
– The FLOWer device could physically be pierced and retrieved with a hook, but doing so damaged the filter mesh and was at most an unconventional emergency measure, not a lege-artis use. The Court therefore found no infringement.
– At the oral hearing, AorticLab unconditionally limited its revocation counterclaim so that it would be decided only if infringement were found. This was a limitation under Rule 263.3 RoP; because the condition did not occur, the Court made no validity ruling.
– For example, although no decision was issued on the counterclaim, AorticLab had caused the related costs by choosing the conditional limitation and therefore had to bear those costs.
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UPC-CFI-1624/2025; 2026-1-13; Heraeus v Vibrantz

ORIGINAL-KEYWORDS:
Wiedereinsetzung in den vorherigen Stand bei Versäumung der Frist zur Einleitung eines Kostenfestsetzungsverfahrens bei Kostenquotelung; abweichende Meinung gem. Art. 36 der Statuten.

AI-TRANSLATED-KEYWORDS:
Re-establishment of rights following failure to meet the time limit for initiating cost-assessment proceedings where costs are apportioned; dissenting opinion pursuant to Art. 36 of the Statute.

ORIGINAL-HEADNOTE:
1) Bei einer Kostenquotelung sind beide Parteien gehalten, fristgerecht eine anteilige Kostenfestsetzung gem. Regel 151 der Verfahrensordnung zu beantragen.
2) Die Versäumnis, die Frist für einen Antrag auf Kostenfestsetzung gemäß R. 151.1 der Verfahrensordnung einzuhalten, kann nur durch Wiedereinsetzung in den vorigen Stand (R. 320 VerfO) geheilt werden (UPC_CoA_618/2024).
3) Zur gebotenen Sorgfalt im Sinne der Regel 320.1 der Verfahrensordnung gehört grundsätzlich die Kenntnis der Rechtsordnung sowie der hierzu ergangenen Entscheidungen, insbesondere des Berufungsgerichts. Ein etwaiges Verschulden ihres EPG-Vertreters muss sich die vertretene Partei zurechnen lassen.
4) Fehlende Rechtskenntnis genügt daher im Regelfall nicht als Wiedereinsetzungsgrund.
5) In der vorliegenden speziellen Fallkonstellation ist der Antragstellerin aber trotz anwaltlicher Vertretung die Verkennung der Rechtslage nicht anzulasten.

AI-TRANSLATED-HEADNOTE:
1) Where costs are apportioned, both parties must file a timely application for assessment of their respective share of costs under Rule 151 RoP.
2) Failure to comply with the time limit for an application for assessment of costs under Rule 151.1 RoP can be remedied only by re-establishment of rights under Rule 320 RoP (UPC_CoA_618/2024).
3) The due care required under Rule 320.1 RoP generally includes knowledge of the applicable law and the decisions rendered under it, particularly decisions of the Court of Appeal. Any fault of a party’s UPC representative is attributable to the represented party.
4) Lack of legal knowledge therefore does not normally constitute a ground for re-establishment.
5) In the specific circumstances of the present case, however, the applicant’s mistake as to the law was not attributable to it despite legal representation.

AI FEEDBACK:
– The majority held that a split costs order makes each party partially successful, so each must protect its own recoverable share by filing a Rule 151 cost-assessment application within the one-month period, even when one party expects to be the net payer.
– Missing that period can be cured only through Rule 320 re-establishment. Ordinarily, counsel’s legal mistake is attributed to the client and does not satisfy the due-care test.
– Re-establishment was nevertheless granted because the Rules did not clearly state that both parties had to file, the UPC case law was not settled, and the published dissent demonstrated genuine legal uncertainty.
– For example, Heraeus assumed that, as the net payer under a 60/40 allocation, it could raise its 40% share merely as an offset in Vibrantz’s cost proceeding. The Court found that assumption legally wrong but exceptionally excusable.
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#actionable UPC_CFI_433/2024; 2026-1-7; Microsoft v Suinno Mobile & AI Technologies Licensing

ORIGINAL-KEYWORDS:
stay of the proceedings; application to amend the patent; added subject-matter.

ORIGINAL-HEADNOTE:
1. The defendant in a counterclaim for revocation action is entitled to amend the patent, provided that the relevant application is included in the statement of defence (or, in any event, meets the filing deadline for this application) and contains the information referred to in Rule 30 ‘RoP’.
2. The requirements for an application to amend the patent concerning the filing deadline, the inclusion of at least one amendment, and the use of the official language of the patent are objective in nature; failure to comply with these leads to the inadmissibility of the application. Conversely, the assessment of clarity, the sufficiency of the explanation regarding validity and infringement, and the reasonableness of the number of amendments is a matter of judicial discretion. Based on the specific circumstances of the case, the Court may decline to examine amendments that are inadequately formulated, insufficiently explained, or excessive in number.
3. As a general rule, while the mere deletion of claims may not necessitate a consolidated document, any substantive amendment requires the applicant to submit a full set of the amended claims. In accordance with the principle of judicial neutrality, the Court is prohibited from assisting the party in drafting or clarifying amendments. Consequently, the proposed amendments must be immediately intelligible to the Court and the counterclaimant without requiring subjective reconstruction of the applicant’s intent, ensuring the accuracy of subsequent annotations in the official patent registers.

AI FEEDBACK:
– Rule 30 RoP gives the patent proprietor a right to defend a revocation counterclaim with amendments, but the application must be timely and must contain an actual amendment in the patent’s official language. Those threshold requirements are objective.
– Clarity, supporting explanations and the reasonable number of auxiliary requests require case-specific judicial assessment. For substantive changes, a complete consolidated claim set must normally be filed by the same deadline because the Court must remain neutral and cannot reconstruct or draft the proprietor’s case.
– Suinno’s Auxiliary Request II asked to delete dependent claims “as needed,” while Auxiliary Requests III-XVII proposed combinations without timely consolidated claim sets. Those requests were insufficiently clear and were not examined.
– For example, only Auxiliary Request I was properly formulated, but it amended claims 6, 10 and 12 and could not cure the added subject-matter found in claim 1. EP 2 671 173 was therefore revoked in its entirety.
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Unified Patent Court – Landmark Decisions