Latest substantive UPC decisions

• G. Pohl-Boskamp, a pharmaceutical company, applied for provisional measures against the respondents on the grounds of alleged infringement of its patent relating to a composition for the control of ectoparasites and their eggs. G. Pohl-Boskamp sold, among other things, a lice remedy as a medical device. The respondents manufactured, distributed and advertised an alleged infringing product.
• The respondents had challenged the validity of the patent, alleging insufficiency and lack of inventive step, but the court did not find any of these grounds convincing.
• In relation to G. Pohl-Boskamp's infringement claim, it submitted an analysis of the alleged infringing product. The respondents disputed the analysis but they did not provide any evidence that the accused products did not infringe. The court considered that infringement had been sufficiently demonstrated.
• The Mannheim LD was satisfied for the purpose of ordering provisional measures that G. Pohl-Boskamp's patent was valid and the balancing of interests favoured it. As such, provisional measures were granted, including a preliminary injunction.
• On the balancing of interests, the Mannheim LD held that the requirement of urgency was met, G. Pohl-Boskamp having become aware of the infringement on 13 August 2024 and having filed the application for provisional measures on 20 September 2024. The court particularly noted that by selling the challenged products the respondents would be directly competing with G. Pohl-Boskamp, which would deprive it of market opportunities for a significant part of the remainder of the life of the patent (due to expire in 2026). The fact that the respondents had ceased distributing the product and might destroy stocks was not decisive in their favour and was inadequate to avoid an injunction.

This analysis is based on a machine translation of a decision not available in English.

• Alexion marketed a range of pharmaceuticals for the treatment of rare diseases. One such pharmaceutical was Soliris, the active ingredient of which was eculizumab. Eculizumab was covered by a patent family held by Alexion, including the divisional patent in this case. Alexion lodged an application for provisional measures, including a preliminary injunction, with the Hamburg LD, claiming that Amgen was infringing its divisional patent by the sale of its biosimilar product BEKEMV.
• The Hamburg LD dismissed Alexion's application, finding that although there was a sufficient degree of certainty that the patent was infringed, it could not be established to the necessary degree of certainty that the patent was valid. It held that not only did it need to consider the likelihood of invalidity based on its own assessment, but that it also needed to take into account the likelihood of an invalidity decision by the EPO. Although in general there should be no difference between the two because both legal bodies apply the same standard, there may be a difference in claim interpretation. The Hamburg LD held that it was reasonably likely that the EPO would revoke the patent due to lack of sufficient disclosure.
• Alexion appealed the Hamburg LD's decision, arguing that the Hamburg LD erred in predicting that the EPO might differ in its approach to claim construction and that it might consider the patent insufficiently disclosed in future proceedings.
• The Court of Appeal dismissed Alexion's appeal and its preliminary injunction application, but for different reasons to the Hamburg LD. The Court of Appeal came to a different, narrower claim construction on the basis that an error in a patent claim can only be corrected via claim interpretation if the existence of an error and the precise way to correct it are sufficiently certain to the average skilled person on the basis of the patent claim, taking into account the description and the drawings and using common general knowledge at the filing date of the patent. In this case, the existence of an error and the way to correct it were not sufficiently certain to the average skilled person.

• Tandem filed a revocation action against Roche requesting that Roche's patent relating to a system for ambulatory drug infusion be revoked on the basis of added matter, lack of novelty and lack of inventive step. The court dismissed these attacks, holding the patent to be valid.
• The court rejected Roche's challenge to its jurisdiction on the grounds that Tandem was in breach of a standstill agreement between the parties. The Paris CD found that breach of a standstill clause does not necessarily divest the breaching party of the right to bring an action but may only give rise to liability for breach of contract. In this case the temporal restriction on the right to sue was not justified by any public interest, but rather was solely intended to provide them a cooling-off period to assess the possibility of a settlement, and therefore was driven by a private interest.

• Huawei brought direct and indirect infringement claims against Netgear in relation to its patent that was declared essential to IEEE for the WiFi 6 standard. The defendants, Netgear, were various group companies that manufactured, sold, distributed and operated online shops relating to their network products. The defendants denied infringement and filed counterclaims for revocation. They also pleaded a FRAND defence based on EU competition law.
• The Munich LD found Huawei's patent valid and infringed. As such, the court issued a permanent injunction because there was a risk of recurrence due to Netgear's past infringing acts in the relevant UPCA contracting member states. The court ordered Netgear to give information and render accounts regarding their infringing activities, remove the infringing embodiments from the channels of commerce and hand them over to a court bailiff for destruction, with the exclusion of products equipped with a Qualcomm modem placed on the EU market within a certain period.
• In considering Netgear's FRAND defence based on EU competition law, the Munich LD took a similar approach to the Mannheim LD in Panasonic v Oppo, which largely followed the approach of the German courts. The Munich LD set out the principles laid down by the CJEU in Huawei v ZTE that underpin FRAND negotiations, noting that a purely economic determination of the amount of the licence without taking into account the relevant conduct of the parties in the negotiations cannot be upheld under European law.
• In applying the Huawei v ZTE principles to this case, the Munich LD found that Netgear had not signalled a sufficient willingness to license after receiving the infringement notice from Huawei. The Munich LD said Netgear delayed negotiations, rejected Huawei's offer without providing a valid counteroffer, and did not provide any security or sufficient information. It also found that Netgear failed to demonstrate that the patent in suit conferred on Huawei a dominant position in the market. Huawei had complied with its FRAND obligations.

This analysis is based on a machine translation of a decision not available in English.

• Dexcom's patent relating to continuous glucose monitoring devices was revoked for lack of inventive step. On claim interpretation, the Paris LD reminded the parties that the patent claim was the decisive basis for determining the protective scope and validity of the patent. Dexcom's interpretation of the claim was consistent with the description. However, adopting that approach for the purposes of claim interpretation would have led to an incompatibility with the wording of a number of claim features and would have meant using the description and the drawings as explanatory aids for interpretation of the patent claim. The court held that such an approach would not strike the balance between adequate protection for the patent proprietor and sufficient legal certainty for third parties.
• Dexcom filed three auxiliary requests to amend claim 1 of the patent in issue, which the court rejected on basis of added matter. The Paris LD applied the EPO's approach to added matter: that is, the "question to be addressed is whether the skilled person considering a claim would be confronted with new technical information based on what was derivable, directly and unambiguously, from the whole contents of the description, claims and figures of the earlier application”.

• This order arose following an interim conference between the parties.
• The Nordic-Baltic RD decided not to reschedule the UPC oral hearing, despite the hearing of accelerated EPO opposition proceedings being scheduled for the day after the UPC hearing. The court noted that it was likely that it would have the outcome of the EPO opposition proceedings before it issued its decision on the merits as the EPO Opposition Division usually delivers its decision orally. In any event, the decision would likely be subject to an appeal. Against this background, the court declined to reschedule its hearing and requested that the parties update it on the outcome of EPO proceedings.
• Meril's inclusion of additional prior art, introduced as a starting point (the closest prior art) for an attack on inventive step in its counterclaim, was held to be inadmissible. The Nordic-Baltic RD agreed with the Paris CD that grounds for revocation that could have been included in the initial statement of revocation are inadmissible. However, excluding arguments and evidence did not mean that Meril could not use those to prove the alleged scope of the common general knowledge (CGK) as part of the inventive step attack to help prove specific statements made in the counterclaim. As such, Meril was allowed to rely on additional documents to support its CGK-based arguments. Meril requested the allocation of a court expert but the court was not convinced that there was a need for one. Meril also requested that its expert (who had submitted a written expert opinion) be summoned to be heard at the oral hearing and that the parties be allowed to cross-examine/question him. The court held that, according to Article 53 UPCA, the questioning of experts is limited to what is necessary. Meril did not submit an application to the courts under Rule 176 RoP seeking to offer oral witness evidence and setting out more details about it, instead making the offer in different statements submitted to the court. In light of this, the court concluded that it could not see that there would be additional value to hearing Meril's expert in person.

• Dyson lodged an application for provisional measures against SharkNinja in the Munich LD, alleging infringement by SharkNinja of its patent relating to hand-held vacuum cleaners. The Munich LD ordered an interim injunction against SharkNinja, finding that it was more likely than not that Dyson's patent was valid and that it had been or would imminently be infringed.

• SharkNinja appealed to the Court of Appeal, arguing that the contested embodiments did not infringe the patent in suit, that the Munich LD's claim construction was erroneous and that it made an incorrect assessment of the validity of the patent in suit.
• The Court of Appeal decided that a feature of the patent claim (cyclonic separating apparatus) was not realised by the SharkNinja products based on the videos provided and therefore it was not more likely than not that the patent was infringed. As such, the preliminary injunction against SharkNinja was lifted by the Court of Appeal. As a result of its finding that the patent was not more likely than not infringed, it did not need to examine the other grounds of appeal raised by SharkNinja.

• Eight Pfizer entities filed a revocation action against GSK concerning its patent relating to RSV F protein compositions and methods for making them in the Milan CD. Prior to this, GSK had already filed an infringement action concerning the same patent against fourteen Pfizer entities in the Düsseldorf LD. GSK later lodged a preliminary objection in the revocation proceedings objecting to the competence of the Milan CD.
• GSK argued that the Milan CD did not have the competence to decide on the validity of the patent in suit pursuant to Article 33(4) UPCA because of the existence of an earlier filed infringement action between the same parties relating to the same patent. Pfizer also lodged a preliminary objection in the infringement proceedings, which it argued was admissible and therefore it contended that the infringement proceedings were inadmissible.
• The Milan CD found that GSK's preliminary objection was admissible but it was not well founded. The court held that the infringement action before the Düsseldorf LD and the revocation action before the Milan CD did not relate to "the same parties" as required by Article 33(4) UPCA. "Parties" in the sense required by Article 33(4) UPCA relates to legal entities and may not be understood in a broad way as referring to companies within the same corporate group. There must be identity of parties and a partial overlap between the parties is not enough to engage Article 33(4) UPCA. In this case, claimants 1 and 8 were not sued in the infringement proceedings.
• GSK made an auxiliary request requesting that the Milan CD decline competence for claimants 2 to 7 where there was overlap with the infringement proceedings. The court declined to do this, stating that the infringement action was lodged before the patent was granted (prior to its publication in the European Patent Bulletin) and therefore was inadmissible on the day it was lodged and could not challenge the competence of the Milan CD. The revocation action was filed on the grant date and therefore was admissible.

• This decision concerned another revocation claim brought by NJOY against a VMR patent also relating to electronic cigarettes, which it alleged lacked inventive step.
• In this case the revocation claim failed, with the Paris CD holding that the patent was novel and inventive. In assessing inventive step, the Paris CD was clear that the problem-solution approach is only one possible way of assessing the issue. There is no legal rule that dictates it must be applied, and it does not restrict the application of other approaches. In this case, the court followed the suggestion of the claimant and made its assessment based on different starting points, which it said was "more complete and objective". Based on this approach, the court held that there was not a lack of inventive step.
• In considering what amounts to common general knowledge, the court stated that it was information that was commonly known to the skilled person from written sources or practical experience in the relevant field available at the priority date. This could include knowledge that is directly available from familiar sources of information relating to that technical field but did not necessarily include all publicly available knowledge as this may not have been general and common.

• NJOY filed a revocation action against VMR Products, requesting that VMR's patent relating to vaporizers or electronic cigarettes be revoked due to lack of inventive step. The Paris CD upheld NJOY's claim and found the patent invalid.
• In assessing inventive step, the Paris CD followed the problem-solution approach. In this case, the patent did not explicitly state which problem was solved by the claimed solution so this had to be construed. The court found that the underlying problem of the invention was to develop a vaporizer that had a shell with a battery segment and cartomizer segment defined by how they were inserted into the cartridge, which allows a portion of the cartomizer chamber of the shell to be visible from the outside.
• VMR sought to argue that the problem was to provide a vaporizer with an improved user experience. The court did not find this convincing as it was too unspecific, lacked refence to the technical aspects of the invention and did not have a link to what the invention actually achieved over the state of the art.
• Ultimately, the court held that the skilled person would arrive at the claimed subject matter on the basis of their knowledge and skills, even though there was no direct and unambiguous disclosure of the distinguishing feature in the prior art, as it would have been an obvious modification.
• During the course of the judgment, the Paris CD noted the "front-loaded" nature of UPC proceedings whereby a claimant is required to concretely set out its arguments and evidence in its first written pleadings. In revocation actions, the claimant is required to specify in detail the grounds of invalidity that allegedly affect the contested patent, as well as prior art documents relied on in relation to allegations of lack of novelty or inventive step. As such, a claimant cannot introduce new grounds of invalidity or new documents considered novelty destroying or as good starting points for the inventive step assessment subsequently. However, it may be possible for the claimant to allege new facts and evidence insofar as they are supportive of the main facts already alleged.

• Häfele brought an application for provisional measures against Kunststoff for alleged infringement of its patent relating to height adjustable cabinet legs and tools (EP 051).
• In November 2021, Häfele had brought an action for an injunction before the Düsseldorf Regional Court in relation to another patent (EP 603) in the same patent family as the patent in suit. Those proceedings were stayed pending the outcome of EPO opposition proceedings. After the opposition proceedings, EP 603 was upheld with restrictions so the Düsseldorf Regional Court scheduled a hearing for May 2025.
• In these UPC proceedings, the Munich LD refused the preliminary injunction, finding that the weighing of interests did not favour grant. Even though the court had decided that it was more likely than not that that the attacked tools were a direct infringement and the attacked height adjustable legs an indirect infringement, Häfele's interests in obtaining a preliminary injunction did not outweigh Kunststoff's interest in remaining free to continue its actions until a decision on the merits. The court noted that Häfele could reasonably be expected to wait for the decision in the main proceedings.
• Despite its finding on the balance of interests, the Munich LD accepted that Häfele had acted with urgency in bringing its provisional measures application because the application was filed shortly after unitary effect was registered. However, its swift action did not imply necessity: the provisional measures must be objectively urgent, which they were not.
• Häfele relied upon the earlier Düsseldorf Regional Court proceedings to try to establish urgency in these proceedings. The Munich LD did not accept this, noting that those proceedings related to different property rights and the urgency or long duration of those national proceedings had no bearing on the UPC proceedings. The court decided that the failure of Häfele to enforce its intellectual property rights before the Düsseldorf Regional Court should not be detrimental to Kunststoff.
• The Munich LD explained that, given the balance of interests did not justify granting a preliminary injunction, validity did not need to be decided. However, it did express some doubts about the novelty of the patent.

This analysis is based on a machine translation of a decision not available in English.

• This decision is related to Insulet v Menarini in the Milan LD. Insulet applied ex parte for provisional measures against EOFlow (the producer of the allegedly infringing device for which Menarini is the exclusive distributor in Europe). Again, the ex parte action was rejected. EOFlow lodged a defence, asserting that Insulet's patent was invalid. Menarini filed an application to intervene in these proceedings, which was supported by EOFlow. This was rejected by the Milan CD, which held that Menarini could achieve its objectives in the parallel proceedings and should not be given the opportunity to represent its case in front of two different courts.
• Nevertheless, the Milan CD rejected Insulet's application for a preliminary injunction. The Milan CD confirmed the need for the applicant to prove with a sufficient degree of certainty that: (i) it is entitled to initiate proceedings under Article 47 UPCA; (ii) the patent is valid; and (iii) its rights are being infringed or such infringement is imminent. Much like the Milan LD in the parallel proceedings, the Milan CD here found that it was more likely than not that the patent would be held invalid.
• Again, Insulet made an auxiliary request to amend the patent, which was deemed inadmissible in proceedings for provisional measures.

• This was a dispute between two start-ups relating to Plant-e's patent claiming a device and a method for converting light energy into electrical and/or hydrogen energy. Plant-e claimed that Bioo (Arkyne Technologies) directly and indirectly infringed its method claim with three of its products. Arkyne counterclaimed for revocation, claiming the patent lacked novelty or, alternatively, it lacked inventive step over the prior art. It also made insufficiency and added matter arguments.
• The Hague LD found the patent to be valid and, for the first time in the UPC, infringed by equivalence.
• As for inventive step, the court followed the problem-solution approach, as had been suggested by the parties. The protection afforded by the patent was in line with the contribution it made to the art.
• As for infringement, the court took a two-step approach,  first evaluating 'literal' infringement and then assessing infringement by equivalence. In determining the test to be applied for assessing infringement by equivalence, the court relied on case law from various national jurisdictions which had been proposed by the parties. It held that a variation is equivalent to an element specified in the claim if four questions are answered positively:
  
  • Does the variation solve (essentially) the same problem that the patented invention solves and perform (essentially) the same function?
    
  • Is extending the protection of the claim to the equivalent proportionate to a fair protection for the patentee, both in view of the patentee's contribution to the art and whether it is obvious to the skilled person from the patent publication how to apply the equivalent element (at the time of the infringement)?
    
  • Does the skilled person understand from the patent that the scope of the invention is broader than what is literally claimed?
    
  • Is the allegedly infringing product novel and inventive over the prior art?
• The court ordered the grant of an injunction covering the UPC territories where the patent was valid, which was subject to a recurring penalty payment for breach. The court also granted an order to recall all of the infringing goods and for their destruction.
• Arkyne argued that the court could not impose specific text for the recall letter because this was not stated in Article 64 UPCA. The court rejected this, holding that Article 64 UPCA is based on Article 10 of Directive 2004/48 (IP enforcement directive). The court stated that it would apply EU law and can also use national law (by which the directive has been implemented) as sources of law. As such, the use of specific text for a recall letter and/or for website publication was permissible to ensure that the measure is effective and to avoid unclear or confusing messages.

• Panasonic alleged that Oppo had infringed its patent that was declared essential to the 4G standard by the sale of their 4G-capable devices, including smartphones and smartwatches. Oppo pleaded a FRAND defence and a FRAND counterclaim. The FRAND counterclaim requested various things in the alternative,  such as ordering Panasonic to accept Oppo's licence agreement offer, ordering Panasonic to submit a licence offer to Oppo, issuing declaratory relief confirming Oppo's right to a licence, and obliging Panasonic to obtain a FRAND licence on terms that the court determines.
• The Mannheim LD ordered an injunction following the finding that Panasonic's patent was valid, infringed and essential to the 4G standard because there was a risk of recurrence of Oppo's infringing acts.
• As for Oppo's FRAND defence, the Mannheim LD applied the CJEU's decision in Huawei v ZTE. The court emphasised that the infringement notice (step 1 in Huawei v ZTE) should not be assessed in a formalistic way. Here, although Panasonic had not provided a claim chart for the patent in issue but instead for a Chinese counterpart, this was found to be sufficient as any misunderstanding should have been raised promptly by Oppo.
• As for the implementer's expression of willingness to licence (step 2), the court said that this must be assessed on the overall evaluation of the circumstances and not in a strict sequential or formalistic manner. Here Oppo's statements at the beginning of the negotiations were held to be sufficient to show serious willingness to enter into serious negotiations. This is in contrast to the UK position as the implementer does not have to commit to be bound by a court-determined FRAND licence.
• In respect of Panasonic's initial offer (step 3), the court held this to be FRAND-compliant. Importantly, Panasonic "tried to clarify its position as to why it consider[ed] the prices to be reasonable". Oppo raised an objection about the offer during the course of these proceedings and this was held against it. The court noted that objections should be raised in "close temporal connection" to the offer during the course of the negotiations to give an opportunity for any issues to be overcome without judicial assistance.
• Oppo's counteroffer (step 4) was assessed and found not to be FRAND-compliant. Oppo was found not to have behaved in good faith as required by someone who is seriously interested in taking a licence. Moreover the security offered by Oppo in case its counteroffer was rejected was also found to be insufficient. Overall, Oppo's procedural conduct was found not to be good faith as it was characterised by "self contradictory conduct". Oppo had tried to both challenge the jurisdiction of the UPC in general and also apply for the determination of a FRAND rate by way of its FRAND counterclaim. They had delayed negotiations and their initial requests in their FRAND counterclaim were directed at having the panel determine a territorially limited licence rate (EPC contracting states, the USA and Japan), which the Mannheim LD said contradicted its own arguments that only the determination of a global FRAND rate would be FRAND.
• The Mannheim LD also dismissed Oppo's FRAND counterclaim. Although the counterclaim was admissible, with the court deriving its jurisdiction from Article 32(1)(a) UPCA, it was not well founded because Oppo's offer was not FRAND-compliant and Panasonic could not be obliged to accept it. Notably, Oppo's offer had not been calculated based on its own acts of use.
• The UPC applied a similar approach to German courts, emphasising implementers' obligations to act as a willing licensee and to make serious efforts to conclude a licence. It is clear that the UPC is willing to injunct implementers if they fail to meet their FRAND obligations (as per EU law) and a SEP is held to be valid and infringed.
• After reviewing confidential information, a less redacted version of the judgment is available here.

This analysis is based on a machine translation of a decision not available in English.

• Insulet filed an ex parte application for provisional measures against Menarini for alleged infringement of its patent relating to an insulin patch pump. Insulet claimed that Menarini infringed through offering and selling pumps of which it is an exclusive European distributor for the South Korean company EOPatch. Insulet requested a preliminary injunction, as well as ancillary measures including a declaration of origin and distribution channels, identification of all parties involved and delivery up. The requirements for an ex parte order were not met and the Milan LD allowed Menarini to submit responses and attend a hearing.
• With respect to preliminary injunctions, an applicant is required to provide reasonable evidence to satisfy the court with a sufficient degree of certainty (that is, more likely than not) that: i) it is entitled to initiate the proceedings under Article 47 UPCA; ii) the patent is valid; and iii) its rights are being infringed or that infringement is imminent. In this case, the court held that Insulet did not establish with a sufficient degree of certainty that the patent was valid.
• Menarini successfully argued to a sufficient degree that the patent lacked novelty and therefore the court considered it more likely than not that the patent was invalid. As such, the preliminary injunction was refused.
• Insulet had filed four auxiliary requests to amend the patent but the Milan LD followed previous UPC case law and held that the auxiliary requests in proceedings for provisional measures are not admissible prior to the main proceedings. The court rejected the assertion that the amendments were amendments to Insulet's case and therefore fell within Rule 263 RoP. Amendments to the case under Rule 263 RoP refer to modifications to the case: for example, the introduction of a new claim or the substitution of the original claim. In contrast, an application to amend a patent is governed by Rule 30 RoP and such a request can only be made in the main proceedings in a defence to a counterclaim for revocation or in a defence to a revocation action.

• This decision concerned Edwards' patent relating to a low profile delivery system for transcatheter heart valves. Edwards had commenced an infringement action against Meril in the Nordic-Baltic RD. In the meantime, an opposition was filed against the grant of the patent at the EPO. The EPO issued a preliminary non-binding opinion stating that the grounds for opposition prejudiced the maintenance of the patent and accelerated the opposition proceedings.
• Shortly after this, Meril filed counterclaims for revocation and in response Edwards filed applications to amend the patent. Meril also filed an application in the infringement proceedings requesting that the court stay the infringement proceedings pending a decision by the Opposition Division on the validity of the patent. The Nordic-Baltic RD rejected Meril's stay request, finding that it could be reasonably assumed that the Opposition Division's decision would be appealed and therefore the final decision from the EPO could not be expected rapidly as required by Article 33(10) UPCA and Rule 295(a) RoP.
• Meril filed an appeal at the Court of Appeal, requesting that the Nordic-Baltic RD's order be set aside and the infringement proceedings be stayed. The Court of Appeal referred the case back to the panel of the Nordic-Baltic RD that issued the order for further consideration of the request for a stay, on the grounds that it had erred in refusing to grant the requested stay solely on the basis of its finding that the final decision in the opposition proceedings could not be expected rapidly.
• The court stated that Article 33(1) of the UPC Agreement provides that the court may stay proceedings if a rapid decision may be expected from the EPO. Meril was correct to argue that provisions of Article 33(10) UPCA and Rule 295(a) RoP do not require a final decision of the EPO, and therefore that the proceedings may be stayed in expectation of a rapid decision of the Opposition Division. The Court of Appeal concluded that the approach of the Nordic-Baltic RD to making a decision was incorrect. It should have considered whether a rapid decision of the Opposition Division could be expected rather than a final decision, taking into account the balance of interests of the parties and other circumstances of the case.

• This decision concerned Meril's alleged infringement of Edwards' patent relating to a prosthetic heart valve. Separate validity proceedings were issued by Meril in the Paris CD and separate revocation counterclaims were initiated in the Munich LD. These revocation claims/counterclaims were consolidated by the Paris CD, which rejected the revocation action and maintained the patent in amended form. The decision was appealed.
• Here the Munich LD found that Meril's attacked embodiment made "direct and literal use of the patent, as upheld by the [Paris CD]". Accordingly, the court ordered an injunction against Meril. Meril argued against the territorial scope of the injunction, pointing to a disclaimer on its website noting that the infringing product was not available for sale in Germany. The Munich LD reminded Meril that under Article 34 UPCA injunctive relief (and other corrective measures) can be ordered with respect to all contracting member states in which the European Patent has effect and for which the decision has been requested, as long as an infringing act or the risk of infringement has been proved for at least one UPC member state.
• Meril argued that it had a proportionality defence to the infringement: namely, that the interests of third parties (patients with severe heart disease) and the public necessitated denial of full injunctive relief, recall and destruction of its products. In considering the interests of third parties and the public interest, the court will have regard to the possibility of the infringer entering into a licensing agreement or initiating proceedings for a mandatory licence. Meril's request for a mandatory licence in Germany had been rejected, with it being held to be an unwilling licensee – an assumption it was not able to dispel in these proceedings.
• Even though Meril was considered to be an unwilling licensee, the court still considered the interests of third parties and the public because they have no ability to influence a defendant's behaviour. Here, the court concluded that there was a need for Meril's XL-sized valve prosthesis. As such, the order for recall and destruction was limited so that it did not extend to XL devices scheduled for implantation in individual patients before a specified date.
• Meril had also made a preliminary objection that the court lacked jurisdiction over claims relating to periods prior to the UPCA coming into force on 1 June 2023. The Munich LD rejected this on the grounds that if, at the end of the transition period when the UPC has exclusive jurisdiction over all European patents, if it did not have jurisdiction over these claims, then no court would (even taking into account the statute of limitations, which it noted only applies if the defendant raises it in a timely manner).

• HP brought an infringement claim against LAMA in relation to two patents concerning printer cartridges (EP 230 and EP 669) in the Paris LD. LAMA contested the infringement and filed a counterclaim for invalidity.
• In interpreting the claims of the patents, the Paris LD applied the principles of claim construction laid out by the Court of Appeal in 10x Genomics v Nanostring.
• EP 230 was held to lack novelty as granted. To form part of the state of the art and to be lacking novelty, the invention must be found entirely in a single prior art document. EP 230 was also found to lack inventive step based on HP's conditional amendments and therefore its amendment request was rejected.
• EP 669 was held to be valid and infringed. When assessing infringement before 1 June 2023, it was not relevant to refer to sources of national law. The substantive source of law is Articles 25-26 UPCA.
• It was decided that each party would bear 50% of the costs as one patent asserted succeeded and the other failed.

This analysis is based on a machine translation of a decision not available in English.