Tilman Pfrang, LL.M. | 1st October 2025
This month’s decisions and orders include a trade-fair inspection order, strict diligence under Rule 263 RoP (case amendments), clarifications on direct infringement by component supply, and the non-extendability of deadlines for unitary effect requests.
Local Division Düsseldorf (UPC_CFI_885/2025, Order of 22 September 2025) – Ex Parte Inspection Granted at EMO Trade Fair
The Düsseldorf Local Division authorised an ex parte inspection and evidence preservation under Art. 60 UPCA and Rules 192 et seq. RoP. The Court found a plausible case for infringement of EP 2 983 864 B1 by the PRO500 polishing unit exhibited at EMO Hannover 2025. The inspection order permitted a court-appointed expert, assisted by a bailiff, to operate the machine, record data, and if needed, seize one unit. The Court emphasised urgency and evanescence of evidence, rejecting a “test buy” as impractical. The expert’s report is initially confidential; OTEC will only receive it after redaction of any trade secrets. No security was ordered, as the inspection posed limited risk.
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Court of Appeal (UPC_CoA_807/2025, Decision of 2 September 2025) – Strict Diligence Required for Amending Revocation Case (Rule 263 RoP)
In CeraCon v. Sunstar, the Court of Appeal dismissed an attempt to introduce a new novelty attack based on EP 3 868 480 months after the original revocation counterclaim. The Mannheim Local Division had denied the amendment, and the CoA affirmed, holding that Rule 263.2 RoP imposes a high bar: parties must show that the amendment could not have been made earlier with reasonable diligence. Here, the new prior art had been easily found with the same search strategy earlier. The CoA found no manifest error in the LD’s refusal and declined to override the panel’s discretion. This ruling reinforces the UPC’s front-loaded character and its intolerance of tactical delay in prior art submissions.
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Local Division Mannheim (UPC_CFI_425/2024, Decision of 16 September 2025) – Infringement by Supply of Components only
In a dispute between GESTRA AG and Babcock Wanson regarding EP 3 057 932 B1, the Mannheim Division addressed whether infringement may arise when allegedly infringing components (valve body, actuator, adapter) are supplied in combination but not yet assembled. The Court confirmed infringement under Art. 25 UPCA (direct infringement), finding that the delivery of the parts in functional coordination sufficed, even if final assembly occurred only after delivery. The Court found no exhaustion under Art. 29 UPCA, as there was no authorised first sale. It also reaffirmed that technical function and interdependence of the parts was sufficient to show that they were “specially adapted means” under Art. 26 UPCA. The decision provides welcome clarity on infringement in modular or component-based delivery scenarios.
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Court of Appeal (UPC_CoA_601/2025, Decision of 12 September 2025) – Strict Deadline for Unitary Effect Requests Confirmed
The Court of Appeal confirmed the decision of the Central Divisoin (reported in our August edition) and dismissed a challenge against the EPO’s rejection of a late-filed request for unitary effect, filed more than one month after publication of the grant. The patentee invoked IT problems and confusion about the deadline but failed to demonstrate a procedural error or exceptional justification. The CoA held that the one-month deadline under Rule 6(1) UPR is strict and cannot be extended by analogy to Rule 134 EPC or by discretionary review under the UPCA. The decision further confirms the UPC’s deferential approach to EPO decisions on unitary effect and leaves no room for post-deadline rescue attempts, reinforcing legal certainty in the post-grant phase.
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