Sonja Schwab | 29th July 2026
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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