Tilman Pfrang, LL.M. | 6th November 2026
This month’s edition covers the UPC’s approach to substantive entitlement challenges, signature requirements for electronic filings, late auxiliary requests, and the Court’s powers to safeguard revocation proceedings against potentially obstructive patent withdrawal strategies.
Local Division Brussels – 2seventy bio v Janssen and Legend – Entitlement and standing
23 September 2026 – UPC_CFI_029/2026, UPC_CFI_1934/2026 and UPC_CFI_1940/2026
The Brussels Local Division held that the legal fiction under R. 8.4 RoP, according to which the registered proprietor of a Unitary Patent is treated as such for procedural purposes, does not prevent a defendant from challenging substantive entitlement as a defence. The Court expressly departed from earlier decisions of the Munich and The Hague Local Divisions, which had treated the presumption as non-rebuttable also in substantive matters. However, the defendants failed to make their entitlement challenge sufficiently plausible to justify production of evidence under R. 190 RoP. The Court further clarified that prior notice to the proprietor under Art. 47 UPCA must have been given when the infringement action is brought, although additional evidence establishing timely notice may be submitted subsequently. A proprietor may also intervene in the infringement action while simultaneously defending a counterclaim for revocation without automatically becoming a co-claimant in the infringement action.
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Court of Appeal – Esko v IN(K)CONTROL – Signature requirements
8 October 2026 – UPC_CoA_73/2026
The Court of Appeal clarified that R. 4.1 RoP requires pleadings to be signed by an authorised representative, but does not prescribe a qualified or advanced electronic signature. A scanned handwritten signature is sufficient where its authenticity and the representative’s authority are not in doubt. Authentication through the UPC’s Case Management System alone, however, does not replace the requirement to sign the document itself. The Court also confirmed the broad discretion of the President of the Court of First Instance under Art. 49.5 UPCA when deciding requests to change the language of proceedings. It upheld the refusal to change the language from Dutch to English, giving weight to the claimant’s smaller size and the parties’ establishment in the Dutch-speaking region of Belgium.
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Court of Appeal – Barco v Yealink – Late auxiliary requests
16 October 2026 – UPC_CoA_145/2026
The Court of Appeal confirmed that an auxiliary request under R. 30.2 RoP cannot be used to extend an infringement action to claims that were neither originally asserted nor challenged in the counterclaim for revocation. The proposed claim combination essentially corresponded to a granted dependent claim that would survive the counterclaim irrespective of the auxiliary request. The Court also upheld the refusal to admit the request as late filed. Its admission in parallel EPO opposition proceedings did not justify its subsequent introduction at the UPC, particularly as the combination could have been submitted earlier and would have required the defendants to address additional issues shortly before the oral hearing. The Court emphasised that parallel EPO and UPC proceedings require careful coordination of auxiliary requests from the outset.
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Central Division Milan – Sandoz v Novo Nordisk – Patent withdrawal and inherent jurisdiction
22 October 2026 – UPC_CFI_2221/2026
The Milan Central Division held, when deciding a preliminary objection, that withdrawal of a patent does not necessarily require termination of pending revocation proceedings under R. 360 RoP. Where substantially equivalent subject-matter continues to be pursued through divisional applications, the revocation claimant may retain a legitimate interest in obtaining a validity decision. The Court also considered itself competent to prevent a proprietor from withdrawing approval of the patent text under Art. 113(2) EPC where necessary to safeguard the effectiveness of pending proceedings. It derived this power from the UPC’s inherent procedural jurisdiction rather than an independent basis of jurisdiction under Art. 32 UPCA. However, the Court rejected jurisdiction over the broad declaration of obviousness sought by Sandoz. Importantly, the order decides only jurisdiction: no protective measure was granted, no abuse was established, and leave to appeal was granted.
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