This month’s edition addresses parallel UPC and national proceedings, the necessity requirement for preliminary injunctions, conditional counterclaims for revocation, and the interaction between the UPCA and national law for financial claims arising before and after patent grant.
Local Division Paris – Merz v Viatris – Parallel national proceedings
30 July 2026 – UPC_CFI_1901/2026
The Paris Local Division held that an earlier UPC application for provisional measures does not make the UPC the court first seised for a subsequent infringement action on the merits. PI proceedings and proceedings on the merits are separate proceedings pursuing different objectives for the purposes of Art. 29 Brussels I Recast. Although parallel French proceedings for revocation, non-infringement and a compulsory licence were considered related to the UPC action under Art. 30 Brussels I Recast, the Court declined to stay the UPC proceedings. It emphasised the discretionary nature of Art. 30 and considered that a stay would undermine the objective of swift and efficient UPC proceedings, particularly as the UPC was expected to decide before the French court.
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Local Division Hamburg – Cybex v Nuna – Necessity of preliminary measures
10 August 2026 – UPC_CFI_1321/2026
The Hamburg Local Division granted a PI despite the challenged child-seat system having been on the market for more than a year. Applying the necessity requirement developed by the Court of Appeal in Biolitec v Light Guide, the Court considered the long product lifespan relevant: once a family selected the defendant’s system, that customer could effectively be lost to the applicant for several years. The Court also confirmed that preliminary measures may be based on a claim version narrower than the patent as granted, but refused to admit further auxiliary requests submitted only with the reply where newly introduced features left the defendant insufficient time to address validity.
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Court of Appeal – Emboline v AorticLab – Conditional counterclaims for revocation
17 August 2026 – UPC_CoA_40/2026
The Court of Appeal confirmed that a counterclaim for revocation may be made conditional upon a finding of infringement. Since infringement and revocation are separate actions, the Court characterised this as an inter-procedural condition and applied Rule 263.3 RoP by analogy. Making an existing counterclaim conditional merely limits the circumstances in which it is to be decided and requires no particular justification. However, a conditional counterclaim must still be fully pleaded and remains pending even if the condition is not fulfilled. The principal advantage may therefore be avoiding an unnecessary validity decision rather than saving costs: substantial validity costs may already have been incurred, and the Munich Local Division had ordered the counterclaimant to bear the costs attributable to the counterclaim after non-infringement was found.
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Court of Appeal – Yellow Sphere and Härtwich v Knaus Tabbert – Provisional protection & applicable law
17 August 2026 – UPC_CoA_365/2025 and UPC_CoA_367/2025
The Court of Appeal held that compensation for use of an invention during the provisional protection conferred by a published European patent application is governed by national law, even where the relevant use occurred after 1 June 2023. The UPCA provides jurisdiction for such claims but no substantive basis for compensation. By contrast, damages for infringement of a granted patent are governed by national law for acts completed before 1 June 2023 and by the UPCA for later acts. The applicable law must also be assessed separately for different remedies. The decision may result in different limitation periods for pre-grant and post-grant use; under German law, a residual claim concerning pre-grant use may potentially remain available for up to ten years, although the Court did not expressly decide how this interacts with Art. 72 UPCA.
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This month’s edition covers the UPC’s developing approach to urgency in preliminary injunction proceedings, the treatment of late-filed non-infringement arguments, the defence of dependent claims in revocation actions, and the procedural consequences of relying on confidentiality agreements to withhold relevant evidence from the Court.
Local Division Düsseldorf – InterDigital v Disney – FRAND & confidentiality
23 July 2026 – UPC_CFI_87/2025, UPC_CFI_488/2025
The Düsseldorf Local Division held that a party cannot rely on a confidentiality agreement to prevent the Court from examining evidence that is relevant to a FRAND defence while simultaneously benefiting from the resulting evidential uncertainty. Where InterDigital refused to permit disclosure of licensing negotiations covered by an NDA, the resulting evidential gap operated to its detriment, and the Court proceeded on the basis that the relevant requirement of the Huawei v ZTE framework had been satisfied. Although the decision arose in the context of FRAND negotiations, the principle is of broader procedural significance whenever confidentiality arrangements prevent judicial examination of relevant evidence.
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Court of Appeal – Fujifilm v Kodak – Dependent claims & inventive step
13 July 2026 – UPC_CoA_473/2025, UPC_CoA_474/2025, UPC_CoA_873/2025 and UPC_CoA_881/2025
The Court of Appeal held that a patentee need not file an auxiliary request merely to defend granted dependent claims or claim combinations already encompassed by the granted claims. However, the patentee must clearly identify the claims and combinations relied upon, while the revocation claimant must substantiate its attacks accordingly. The Court further clarified that, in an inventive-step attack, the content of a secondary prior-art document cannot itself provide the motivation to consult that document. In addition, it held that penalties are generally inappropriate to enforce monetary obligations and that publication orders under Art. 80 UPCA require special circumstances.
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Court of Appeal – Align v Angelalign – Uncontested facts and infringement
8 July 2026 – UPC_CoA_36/2026
The Court of Appeal distinguished between late-filed submissions disputing technical facts and arguments addressing the legal assessment of undisputed facts. While late factual disputes may be disregarded, arguments concerning whether an undisputed functionality falls within the scope of the claim may still be admitted. Most importantly, the Court clarified that uncontested facts do not automatically establish infringement. Even where a defendant loses the opportunity to dispute the claimant’s factual allegations, the Court must still determine whether those facts satisfy the properly construed patent claim.
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Court of Appeal – Guardant v Sophia Genetics – Urgency for preliminary injunctions
2 July 2026 – UPC_CoA_19/2026
The Court of Appeal further developed the UPC’s case law on urgency under Rule 211.4 RoP. It held that urgency must be assessed separately for each asserted patent, meaning that a patentee cannot normally delay an application while investigating additional patents. Although patentees are generally under no obligation to monitor the market proactively, they must investigate diligently once concrete indications of infringement arise and must not “turn a blind eye” to information already available. The Court also clarified whose knowledge is relevant within a corporate organisation and confirmed that applicants may generally allow reasonable time for a warning letter and for preparing their application.
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This month’s decisions provide further guidance on several key aspects of UPC practice and patent enforcement. The courts address the requirements for establishing infringement by equivalence, the evidentiary significance of common general knowledge, the UPC’s evolving framework for exercising international jurisdiction, questions of competence between UPC divisions, and the temporal scope of remedies under the UPCA.
Local Division Düsseldorf – Wonderland v Cybex – Equivalence
27 May 2026 – UPC_CFI_807/2024, UPC_CFI_334/2025
The Düsseldorf Local Division adopted the four-part test for infringement by equivalence previously developed by the Hague Local Division in Plant-e and Washtower. Applying that test, it held that it is insufficient to demonstrate that the accused embodiment achieves the same overall objective as the patented invention. Instead, the patentee must explain, for each substituted claim feature, why the replacement performs substantially the same technical function. The Court further held that an alleged equivalent will generally not be obvious to the skilled person where it requires a complete redesign of the claimed device rather than a straightforward substitution of technical means. On that basis, the Court rejected infringement by equivalence without considering the Formstein defence.
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Local Division Milan – Pirelli v Sichuan Yuanxing Rubber – Common general knowledge & evidence
26 May 2026 – UPC_CFI_770/2024, UPC_CFI_556/2025
The Milan Local Division confirmed, in line with the EPO Boards of Appeal, that patent literature forms part of the skilled person’s common general knowledge only in exceptional circumstances. Such an exception may exist where a consistent body of patent documents demonstrates that a particular technical approach was generally known, as the Court found for the planar representation of tyre tread patterns. The Court also applied the principle of proximity of evidence, holding that where the claimant provides strong indicia of infringement and the defendant has privileged access to the relevant technical information, the burden of producing evidence may shift to the defendant.
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Court of Appeal – Fujifilm v Kodak – International jurisdiction
2 June 2026 – UPC_CoA_312/2025, UPC_CoA_333/2025, UPC_CoA_880/2025 and UPC_CoA_882/2025
The Court of Appeal consolidated the UPC’s developing case law on international jurisdiction over non-UPC validations of European patents following the CJEU’s judgment in BSH v Electrolux. While confirming that the UPC may hear infringement actions relating to UK and other non-UPC designations where jurisdiction exists under the Brussels I Recast Regulation, the Court’s principal contribution lies in the procedural framework governing such cases. Where validity is challenged before a national court, the UPC may invite the defendant to commence national revocation proceedings, stay the proceedings or defer relief pending the outcome of those proceedings. The Court also clarified that Rule 29(c) RoP permits additional evidence supporting facts already pleaded, confirmed that private prior use is governed by national law, and rejected any general rule that numerical claim limitations automatically include manufacturing tolerances.
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Court of Appeal – Valeo v Bosch – Central Division competence
22 June 2026 – UPC_CoA_4/2026 and UPC_CoA_13/2026
The Court of Appeal held that the third subparagraph of Art. 33.1 UPCA does not establish an exceptional forum but an additional basis of internal competence. Where one of several defendants is established outside the territory of the Contracting Member States, that defendant may anchor proceedings before the Central Division, provided that the requirements of Art. 33.1(b) UPCA – a commercial relationship and the same alleged infringement – are satisfied. Reversing the Paris Central Division, the Court confirmed the Central Division’s competence for the action against all defendants. It further clarified that, when deciding a preliminary objection under Rule 19 RoP, the Court must confine itself to a summary assessment and avoid prejudging issues that also concern the merits.
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Local Division Düsseldorf – Evac v VacDrain – Article 72 UPCA
22 June 2026 – UPC_CFI_811/2024
The Düsseldorf Local Division held that the five-year limitation period under Art. 72 UPCA applies exclusively to actions seeking financial compensation and does not extend to injunctions, which regulate future conduct. It further confirmed that the UPCA applies where infringing acts began before 1 June 2023 but continued after the Agreement entered into force, provided the continued infringement itself occurred after that date. The Court also rejected implied consent based on previous commercial relationships, held that replacing the patented vacuum buffer device was not covered by exhaustion, and confirmed jurisdiction over Chinese defendants based on a test purchase within UPC territory.
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This month’s edition focuses on procedural aspects of UPC practice, including the consequences of failing to commence main proceedings after evidence preservation measures, the admissibility of revocation actions against expired patents, urgency in preliminary injunction proceedings, and formal filing requirements before the Court of Appeal.
Local Division Düsseldorf – OTEC v STEROS GPA Innovative
4 May 2026 – UPC_CFI_885/2025
The Düsseldorf Local Division clarified the consequences of failing to file a main action after obtaining ex parte inspection and evidence-preservation measures. Because OTEC did not commence proceedings on the merits within the period prescribed by Art. 60.8 UPCA and Rule 198.1 RoP, the Court lifted the inspection order and ordered the return, destruction, and deletion of all evidence obtained through the measure. However, it rejected a request for compensation, holding that legal costs incurred in the evidence-preservation proceedings do not constitute “damage” under Art. 60.9 UPCA and must instead be addressed in separate cost proceedings.
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Central Division Paris – Huntsman v BASF
22 April 2026 – UPC_CFI_461/2025
The Paris Central Division confirmed that a revocation action may remain admissible even where the patent expired before the action was filed, provided the claimant retains a legitimate legal interest. Such interest existed here because the patentee had already taken steps towards pursuing infringement claims for acts committed during the patent term. The Court also reiterated that it is not bound by the objective technical problem formulated in the patent itself and may formulate its own problem based on the patent’s technical teaching. In addition, the Court stressed that attacks directed against granted claims do not automatically carry over to auxiliary requests; amended claim sets must be challenged specifically.
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Local Division Düsseldorf – Ottobock v Teufel / MedEnvoy
7 May 2026 – UPC_CFI_1928/2025
The Düsseldorf Local Division provided important guidance on urgency under Rule 211.4 RoP. The Court held that the applicant bears the primary burden of explaining when it became aware of a potentially infringing product, what investigations were undertaken, and why the timeline leading to the PI application was justified. At the same time, defendants relying on constructive knowledge must first establish concrete facts indicating that the applicant should have acted earlier. On the facts, the Court considered that Ottobock had not sufficiently explained why technical investigations could not have started earlier and therefore denied provisional measures for lack of urgency.
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Court of Appeal – SharkNinja v Groupe SEB
22 May 2026 – UPC_CoA_61/2026
The Court of Appeal clarified two practical procedural issues. First, a procedural document filed through the CMS must itself bear an electronic signature; authentication through the CMS and completion of the upload process are not sufficient. Secondly, the Court confirmed that Rule 9.3(a) RoP permits genuinely retroactive extensions of time, including where the request for extension is made only after expiry of the original deadline. Applying principles of fairness, the Court validated a corrected filing by granting a one-day retroactive extension. The Court also confirmed that commercially licensed third-party market data may qualify as confidential information for the purposes of Rule 262A RoP.
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This month’s edition focuses on important Court of Appeal and first-instance developments concerning preliminary injunctions, international jurisdiction, recoverable costs, and procedural flexibility in UPC interim proceedings.
Court of Appeal – Abbott Diabetes Care v Sinocare / Menarini
17 April 2026 – UPC_CoA_901/2025
The Court of Appeal overturned the Hague Local Division’s refusal of provisional measures and granted a preliminary injunction in Abbott’s favour. Of particular importance is the Court’s clarification of the “necessity” requirement under Art. 62 UPCA: irreparable harm is not a strict prerequisite. Instead, the assessment is forward-looking and may focus on market dynamics, including price erosion, loss of market share, and lasting structural changes caused by entry into a concentrated market. The Court also confirmed that inventive step must be assessed for the invention as a whole, including features that may be non-technical in isolation if they contribute to a technical effect.
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Hamburg Local Division – Dyson v Dreame
7 April 2026
The Hamburg Local Division confirmed the UPC’s broad international jurisdiction under Art. 4(1) Brussels I Recast over defendants domiciled in UPC Member States, including claims relating to non-UPC territories such as Spain and the UK. At the same time, it adopted a narrower view of co-defendant jurisdiction under Art. 8(1), refusing to anchor UK-related claims merely through regulatory compliance roles. On the merits, the Court granted a preliminary injunction for UPC territory and Spain, but not for the UK.
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Local Division Düsseldorf – Seoul Viosys v expert e-Commerce / expert klein
10 April 2026 – UPC_CFI_1110/2025; UPC_CFI_1111/2025
The Düsseldorf Local Division clarified an important practical issue in UPC cost proceedings. Where a first-instance cost decision has already been enforced, but the underlying merits decision is later reversed on appeal, the earlier cost order loses its legal basis. Amounts already reimbursed may then be reclaimed within the subsequent UPC cost-fixing proceedings rather than through separate recovery action. The Court also confirmed that first-instance agreements on recoverable representative costs do not automatically extend to appeal proceedings.
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Court of Appeal – ONWARD Medical v Niche Biomedical
27 March 2026 – UPC_CoA_898/2025
The Court of Appeal confirmed that preliminary injunction applications may, in principle, rely on restricted claim versions that were not granted. The admissibility of such claim versions depends on the circumstances and fairness to the defendant rather than any categorical prohibition. The appeal nevertheless failed because neither direct nor indirect infringement was established with sufficient certainty. The decision also provides useful guidance on indirect infringement, making clear that mere technical capability is insufficient without objective indications of intended infringing use.
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Recent decisions and orders address the limits of UPC long-arm jurisdiction, the UPC’s first referral to the CJEU, fee consequences of staggered counterclaims for revocation, and the continued restrictive approach to additional written submissions in appeal proceedings. The Court of Appeal in particular further sharpened the procedural contours of appeal proceedings and clarified important aspects of the UPC’s international jurisdiction under Brussels I Recast.
Court of Appeal (UPC_CoA_678/2025, Order of 4 March 2026; UPC_CoA_884/2025, Order of 27 February 2026)
In Hurom v NUC Electronics and Sibio Technology v Abbott Diabetes Care, the Court of Appeal again confirmed that the written phase of appeal proceedings is intentionally narrow and that additional written rounds under Rule 36 RoP remain exceptional. In Hurom, the appellant had filed two new auxiliary requests with its statement of grounds of appeal. In response, NUC challenged their admissibility and also attacked them for lack of inventive step based on two newly cited prior-art documents. Hurom sought leave to file a further written submission, but the Court rejected the request. It held that NUC’s arguments were a legitimate response to requests first introduced by Hurom on appeal and that the new inventive-step attacks could not have been raised earlier for that very reason. In Sibio, the Court rejected a similar request for an additional written round where Abbott had relied in its response on six auxiliary requests that had already been filed and admitted at first instance, but had not been addressed in the first-instance decision because the patent had been upheld as granted. The judge-rapporteur held that such auxiliary requests automatically remain part of the appeal proceedings unless withdrawn; there is no need to re-file them on appeal. Their continued reliance therefore did not amount to a cross-appeal and did not justify further written pleadings.
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Local Division Mannheim (CFI_344/2025; CFI_735/2025; PR-UPC-CFI-0000639/2026, Order of 27 February 2026)
In Irdeto v SZ DJI Technology and others, the Mannheim Local Division clarified the application of Rule 370.7 RoP to court fees for counterclaims for revocation where several defendants are served at different times. The Court confirmed that where multiple defendants jointly file a single counterclaim for revocation, only one fee is payable. It distinguished that situation from the case of a later-served defendant filing its own counterclaim at a later stage, even if that counterclaim is identical in content to the one already filed by co-defendants. In the case at hand, defendants 2 to 4 had jointly filed a counterclaim and paid the corresponding fee in August 2025. Defendant 1, however, had only been served later and filed its own defence and counterclaim in February 2026. The Court held that this later filing constituted a separate counterclaim for fee purposes and therefore required a separate fee. It ordered defendant 1 to pay within 14 days and expressly referred to the possibility of a default decision under Rule 355 RoP if payment was not made in time.
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Court of Appeal (UPC_CoA_789/2025; UPC_CoA_813/2025, Orders of 6 March 2026)
In Dyson v Dreame International and others, the Court of Appeal issued the UPC’s first referral to the CJEU. The appeals arose from a preliminary injunction granted by the Hamburg Local Division in proceedings concerning Dyson’s EP 3 119 235. The Court of Appeal confirmed and extended the preliminary injunction within UPC territory, including to additional product variants introduced after the first-instance decision, but stayed the parts of the appeal concerning Spain and the claims against an alleged authorised representative. It referred four questions to the CJEU concerning the limits of the UPC’s international jurisdiction and the concept of an intermediary. The questions focus, first, on whether Art. 8(1) in conjunction with Art. 71b(2) Brussels I Recast can support jurisdiction over a non-EU defendant for alleged infringement in a non-UPC EU state where the co-defendant in a UPC state is merely alleged to be an intermediary. Secondly, they concern whether Art. 71b(2), second sentence, permits cross-border provisional measures against a non-EU defendant extending beyond UPC territory to a non-UPC EU state, particularly where the same products are marketed across Europe through largely identical websites. Thirdly, the Court asked whether the use of a service provider or intermediary established in UPC territory is relevant to that jurisdictional analysis. Fourthly, it asked whether Union law permits an injunction against an authorised representative performing regulatory compliance functions under EU product legislation.
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Court of Appeal (UPC_CoA_922/2025; UPC_CoA_923/2025; UPC_CoA_924/2025; UPC_CoA_925/2025, Order of 13 March 2026)
In Keeex v Adobe, OpenAI and others, the Court of Appeal clarified that UPC jurisdiction based on Art. 7(2) Brussels I Recast is territorially limited to UPC territory and does not extend to alleged infringement in non-UPC states. The Paris Local Division had accepted jurisdiction not only for UPC territories but also for the Swiss, Spanish, British, Irish, Norwegian and Polish parts of the patent. The Court of Appeal set that aside. Referring to CJEU case law such as Fiona Shevill and Pez Hejduk, it held that jurisdiction based on the place where the harmful event occurred allows a court to rule only on damage occurring within the territory linked to that connecting factor. It rejected the view that BSH v Electrolux justified a broader reach irrespective of whether jurisdiction was based on Art. 4 or Art. 7(2) Brussels I Recast. The Court also addressed Art. 71b(3) Brussels I Recast, explaining that this provision may only become relevant if the UPC already has jurisdiction for infringement within UPC territory and that it requires, inter alia, sufficiently connected assets of the defendant in a UPC Member State. Because Keeex had failed to plead the necessary factual basis in its statement of claim, the Court left open whether Art. 71b(3) could in principle justify jurisdiction for non-UPC territories. More generally, the order stresses that claimants must substantiate the Court’s international jurisdiction already in the statement of claim under Rule 13.1(i) RoP and may not cure such deficiencies only later in response to objections. The Court also confirmed that national jurisdiction provisions, such as Art. 14 of the French Civil Code, have no role before the UPC.
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The Hague Local Division (UPC_CFI_616/2025; UPC_CFI_1439/2025, Procedural Order of 18 February 2026)
In GlaxoSmithKline Biologicals v Moderna, the Hague Local Division dealt with three procedural issues in a pharmaceutical dispute. First, it granted GSK leave under Rule 263 RoP to amend its infringement case to expressly include Moderna’s updated vaccine product mNEXSPIKE, although it noted that such an amendment was not strictly necessary because, following the Court of Appeal’s guidance in Abbott v Sibio, an injunction request need not be confined to a closed list of named products and may already cover later variants. Secondly, it addressed GSK’s 40 conditional auxiliary requests filed with its Rule 30.1 RoP amendment application. The Court was not convinced, at that stage, that 40 auxiliary requests introducing at least 18 new features were necessarily “reasonable”, but instead of striking them or imposing a numerical cap, it ordered GSK to file a comprehensive table mapping each auxiliary request to the invalidity attacks it was intended to address. Thirdly, it dismissed Moderna’s Rule 9 RoP application seeking to strike allegedly late-filed evidence and claim-construction and infringement argumentation. The Court held that the contested material was, in substance, a permissible response to Moderna’s pleaded non-infringement and claim-construction defences and that excluding it would interfere with GSK’s right to be heard, especially given the availability of a further written round and the oral hearing.
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This month’s edition highlights significant developments across multiple UPC divisions, including key rulings on added matter, language of proceedings, proportionality of remedies, and the evolving approach to inventive step further departing from the EPO’s problem‑solution framework.
Local Division Munich – GXD-Bio v Myriad
19 December 2025 – UPC_CFI_437/2024; UPC_CFI_681/2024
The Munich Local Division revoked EP 3 346 403 in its entirety for added matter and, independently thereof, dismissed the infringement action. The Court held that the disclosure of breast cancer samples in experimental data did not amount to a disclosure of an invention limited to breast cancer. Nor was the exclusive use of OAZ1 as a sole reference gene directly and unambiguously disclosed. All auxiliary requests failed for the same reasons. Infringement was also denied because the attacked embodiment normalised gene expression to an average of multiple reference genes rather than to OAZ1 alone.
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Court of Appeal – UERAN Technology v Xiaomi
19 December 2025 – UPC_CoA_902/2025
The Court of Appeal dismissed an appeal against an order of the President of the Court of First Instance changing the language of proceedings from German to English under Art. 49.5 UPCA. The Court confirmed the broad discretion of the President and emphasised that the assessment is based on fairness, taking into account all circumstances of the parties. If the balance is neutral, the defendant’s position prevails. Neither the seat of the Local Division nor the availability of machine translation is decisive. Appellate review is limited.
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Local Division Düsseldorf – M-A-S v Altech
10 December 2025 – UPC_CFI_316/2024; UPC_CFI_547/2024
The Düsseldorf Local Division clarified important limits on remedies and pleading standards. In cases of indirect infringement, recall, removal and destruction will generally be disproportionate. Interim damages under Rule 119 RoP require a plausible, fact-based estimate; abstract lump sums were rejected. The Court further held that merely naming prior-art documents is insufficient for an inventive-step attack, which must be reasoned in substance. A revocation counterclaim against a third party was held procedurally admissible, but failed on the merits.
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Court of Appeal – Barco v Yealink
28 November 2025 – UPC_CoA_317/2025; UPC_CoA_376/2025
The Court of Appeal confirmed that Art. 33 UPCA governs only the internal allocation of competence within the UPC and is independent of Brussels I Recast. There is no hierarchy between competence based on the place of infringement and the defendant’s domicile, and no need for defendant-specific connecting factors at the competence stage. The Court also upheld the dismissal of provisional measures for lack of urgency, holding that an unreasonable delay occurred between knowledge of the alleged infringement and filing.
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Court of Appeal – Meril v Edwards
25 November 2025 – UPC_CoA_464/2024 et al.
In Meril v Edwards, the Court of Appeal articulated a holistic approach to inventive step, explicitly departing from the EPO’s problem-solution approach. The Court first defined the objective problem based on the technical teaching of the patent and only then identified “realistic starting points” in the prior art. Obviousness was assessed by asking whether the skilled person would have taken the next step, not merely whether they could. The Court clarified that inventive step may also lie in a non-obvious alternative, even without technical improvement.
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Court of Appeal – Amgen v Sanofi/Regeneron
25 November 2025 – UPC_CoA_528/2024; UPC_CoA_529/2024
In a parallel decision, the Court of Appeal confirmed the same holistic inventive-step framework and further elaborated the role of reasonable expectation of success. The likelihood of success, predictability of outcomes, and technical uncertainties were assessed globally, taking into account the maturity of the field and the strength of any pointer in the prior art. The decision reinforces the UPC’s clear divergence from the EPO’s problem-solution-approach.
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This edition covers important rulings from the Court of Appeal, the Central Division Milan, and the Local Division in The Hague. Key themes include the rejection of claim construction, equivalence and limits regarding the number of validity attacks inrevocation proceedings.
The Hague Local Division (UPC_CFI_187/2024; UPC_CFI_507/2024, Decision of 18 November 2025)
In Advanced Cell Diagnostics v Molecular Instruments, the Hague Local Division ruled on two patents concerning RNA probe technologies. While both patents survived validity challenges, the panel found no infringement – neither literal nor by equivalence. It interpreted “non-overlapping” probe sequences as requiring an absolute absence of overlap and rejected the UK High Court’s more lenient approach in related litigation. The court also found that the accused overlap in MI’s HCR probes served a distinct technical function and could not be treated as an equivalent workaround. On novelty, the panel rejected a combination of Collins and Kern, holding that a generic reference to a second document was insufficient to constitute a direct and unambiguous incorporation for novelty purposes.
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Court of Appeal (UPC_CoA_579/2025; APL_30654/2025, Decision of
7 November 2025)
The Court of Appeal overturned a preliminary injunction granted by the Hamburg LD in OTEC v STEROS and clarified that experimental data not disclosed in the patent specification are generally not relevant to claim interpretation. The ruling concerned an electrolytic polishing medium, where the decisive term was a “non-conductive fluid”. The court held that emulsions must be assessed as a whole and fixed the threshold for “not significantly conducting” at ≤ 10 µS/cm. Post-filed test data submitted by STEROS were disregarded, as were conductivity measurements that did not reflect the finished product as claimed.
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Court of Appeal (UPC_CoA_762/2024; UPC_CoA_773/2024, Decision of 5 November 2025)
In Seoul Viosys v expert klein, the Court of Appeal confirmed the revocation of EP 3 223 320 for added matter. The decision contains important clarifications on how translations of international applications are treated for the purpose of Art. 123(2) EPC. The court held that where the original PCT application is not in an EPO official language, the applicant’s translation filed on Euro-PCT entry is presumed to be accurate and is binding unless the proprietor can prove otherwise. It also confirmed that “comprising” and the singular “a mesa” are not restrictive and, in the absence of clear limitations, cover multiple elements.
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Central Division Milan (UPC_CFI_497/2024; UPC_CFI_571/2024, Decision of 23 October 2025)
In bioMérieux v Labrador Diagnostics, the Milan Central Division confirmed the validity of EP 3 756 767 B1 and upheld the patent in the form of Auxiliary Request 3. The panel criticised the claimant’s attempt to raise more than 50 separate invalidity attacks, calling it incompatible with judicial resources and indicative of poor strategy. It limited the claimant to a few selected prior art documents under Rules 262 and 263 RoP. The court declined to apply the EPO’s problem–solution approach and instead used a broad obviousness assessment based on whether the skilled person would have a motivation to combine known systems.
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This month, the UPC and the EPO Enlarged Board addressed important questions on jurisdiction, selective revocation, claim construction, and procedural fairness. From pre-June 2023 acts to fee payment timing, these decisions further consolidate the UPC’s interpretive autonomy while fostering convergence with EPO practice.
Central Division Paris (UPC_CFI_198/2024, Decision of 28 May 2025) – Selective Revocation Permissible; EP Revoked for Germany Only
In a revocation action brought by Aylo Premium against DISH concerning EP 3 822 805 B1, the Central Division Paris confirmed that a claimant may limit the territorial scope of revocation to selected Contracting Member States. Relying on Art. 76(1) UPCA and the ne ultra petita principle, the Court found no procedural bar to revoking only the German part of the patent. Art. 34 UPCA governs the effect of decisions, not the relief parties may request. Despite a pending EPO opposition hearing, the UPC proceeded, citing its one-year timetable and procedural maturity. The patent was ultimately revoked for added matter under Art. 123(2) EPC: the term “highest quality streamlet” was found to generalise beyond the disclosure of step-wise bitrate upgrades in the application. The ruling affirms both the UPC’s jurisdictional flexibility and its strict stance on intermediate generalisations.
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Court of Appeal (UPC_CoA_156/2025, Order of 2 June 2025) – UPC Jurisdiction Confirmed over Pre-UPCA Acts and Opt-Out Gap
In a widely anticipated decision, the Court of Appeal confirmed the UPC’s jurisdiction over infringement acts predating 1 June 2023 and over acts committed during a prior opt-out. The appeal stemmed from an action filed by Esko-Graphics against XSYS relating to EP 3 742 231. XSYS had argued that the UPC lacked competence due to the timing of the alleged acts and a previously effective opt-out. The Court, however, found that jurisdiction under Art. 32 UPCA depends on the filing date of the action, not the timing of the infringing acts. A withdrawal of the opt-out re-subjects the patent to UPC jurisdiction in full, with no carve-out for interim periods. The CoA invoked international treaty principles (Vienna Convention) and the harmonisation goals of the UPCA. While the Court reserved judgment on whether substantive UPCA law applies to pre-2023 acts, its findings on competence provide welcome clarity for litigants navigating the transition period.
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EPO Enlarged Board of Appeal (G 1/24, Decision of 18 June 2025) – Description Must Always Inform Claim Construction
In a landmark ruling, the Enlarged Board of Appeal of the EPO abandoned the “only-if-unclear” approach to claim construction, holding that claims must always be interpreted in light of the description and drawings – regardless of linguistic ambiguity. The decision brings EPO practice into alignment with the UPC Court of Appeal’s NanoString order (UPC_CoA_335/2023) and the inventive step analysis recently adopted by the Munich Local Division. The Board expressly cited the UPC’s jurisprudence as persuasive, emphasising the need for consistency across Europe. G 1/24 reaffirms that Art. 84 EPC and Art. 69 EPC (and its Protocol) are complementary: clarity is assessed at the drafting stage, but for patentability, the entire disclosure must be considered.
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Court of Appeal (UPC_CoA_286/2025, Order of 23 June 2025) – Timely Fee Payment Requires Transfer Instruction, Not Receipt
In this order, the Court of Appeal addressed whether the court fee must be received or merely instructed at the time of filing. Referring to Art. 70(2) UPCA and Rule 371.1 RoP, the Court ruled that it is sufficient for the party to have given the order to transfer the fee at the time of lodging the pleading. Actual receipt may occur later. The Court reasoned that parties should not be penalised for banking delays, particularly in cross-border proceedings. It also rejected reliance on internal CMS metadata (such as PDF lodging timestamps) for determining timeliness. This clarification provides much-needed legal certainty for practitioners handling filings across multiple jurisdictions within the UPC.
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