Latest substantive UPC decisions

• This decision was an ex parte order for inspection and preservation of evidence.
• The application was made by Van Loon in the Düsseldorf LD against  Inverquark, a specialist wholesaler of pool and garden technology. Inverquark exhibited a product called "InverJet" at the Aquanale trade fair in Cologne between 28 and 31 October 2025, which Van Loon suspected of infringing its unitary patent for a counter-current swimming device. Van Loon filed its application on 28 October 2025.
• The decision was issued 2 days later. The court granted an ex parte order that an expert be appointed to inspect Inverquark's allegedly infringing product, secure evidence and submit a written report on whether the product made use of the technical teaching of the patent.
• The court was satisfied that Van Loon had credibly demonstrated that the patent might be infringed. Van Loon had explained why it considered that all features of the patent were potentially realised in the "InverJet" product, relying on photographs showing the external structure and explaining why it believed the features were met. It had also explained that some features (such as interior aspects and dimensions) were dependent on inspection. The court considered that, due to the special circumstances in the relevant market, it had no other option for gathering evidence and required an inspection of the product.
• The court held that the inspection and preservation of evidence was urgent. The order was issued ex parte in accordance with Rules 192.3 and 197 RoP. Otherwise, there would be a demonstrable risk that evidence would be destroyed or would no longer be available for other reasons.
• There was a serious risk that the product would be removed from the exhibition grounds at short notice. In that case, it would be "almost impossible" for Van Loon to obtain evidence of the alleged infringement. Although Van Loon had been able to view the product after it had been offered to one of its own customers, it was not possible to conduct a test run, take detailed measurements, or disassemble it.
• The court considered a protective letter filed by Inverquark. It had filed this after receiving a warning letter from Van Loon's exclusive licensee a few days before the trade fair. However, it was primarily directed against the granting of provisional measures and the court considered it did not undermine Van Loon's case for inspection and preservation. Indeed, the fact that Inverquark disputed the presence of certain features that could not be determined externally demonstrated the necessity of an inspection.
• The protective letter also did not preclude an ex parte order. It did not contain any specific reasons against issuing an ex parte order for inspection and examination, focussing instead on preventing ex parte provisional measures.
• The court noted that validity was not to be examined in inspection and preservation proceedings unless there were "clear indications" that validity was in doubt (for example, a previous negative decision on validity), citing the Court of Appeal's decision in Valinea v Tiru & Maguin. The fact that Inverquark had questioned validity in correspondence and in the protective letter was not sufficient.
• The court held that Van Loon's interests outweighed those of Inverquark. It considered that the measures did not place an unreasonable burden on Inverquark, and its confidentiality concerns were adequately addressed by confidentiality provisions within the order.
• The court did not order security. The default position is that security should be ordered for ex parte orders to preserve evidence, but it considered that special circumstances for an exemption under Rule 196.6 RoP were present. Inverquark would still be able to offer and distribute its product and it would suffer "minor damage at most". Taking into account the short duration of the trade fair, ordering security would unreasonably delay the order.

• At first instance, the Milan LD held Bhagat liable for infringement of Oerlikon's patent relating to a false twist texturing machine. The Milan LD ordered Bhagat to pay the costs of the proceedings in the sum of €77,064.65 within one month of service of the costs decision. Bhagat appealed the costs decision and an oral hearing was scheduled on 14 November 2025.
• In the meantime, on 26 September 2025, Oerlikon filed an application for security for costs pursuant to Article 69(4) UPCA and Rule 158 RoP for the costs already awarded at first instance and the costs incurred in the appeal proceedings. Oerlikon argued that as a result of Bhagat's conduct to date, there were legitimate concerns that enforcement of a costs decision in India (where Bhagat is domiciled) would be "unduly burdensome".
• Bhagat requested that the application be dismissed or, in the alternative, the costs already ordered against Bhagat in the first instance proceedings be excluded from any security to be ordered. It maintained that a security for costs order would limit its access to justice and unduly interfere with its right to an effective remedy.
• The Court of Appeal rejected the application for security for costs with respect to the first instance costs, but ordered Bhagat to provide security in the amount of €19,000 in relation to the appeal.
• The Court of Appeal explained that in accordance with Rule 158.1 RoP, an application for security for costs can be filed at any time during the proceedings, and may equally be filed in first instance and appeal proceedings. However, in accordance with Rule 150 RoP, the request must be made before an award on costs has been decided by the court as the main purpose of security for costs in the UPC system is to "protect a party from a future risk of not being able to recover its legal costs that the other party may…be liable to bear".
• The outstanding costs payment from the first instance proceedings was not a matter to justify security for costs before the Court of Appeal given that they had already been awarded. The payment is a matter of enforcing of a costs decision and does not justify a request for security for costs in regard to costs already awarded.
• On costs incurred by Oerlikon in the appeal proceedings, the Court of Appeal decided that Bhagat had not provided the court with sufficient comfort that there was no real and legitimate concern that an order for costs may not be recoverable. The Court of Appeal decided that given the scope of the appeal proceedings, which were not complex and were limited, the requested €90,000 was not appropriate. The court considered the ceiling for recoverable costs (€38,000) and ordered security for costs in the sum of 50% of the ceiling (€19,000) to be paid within 10 days from the date of service of the order.

• bioMérieux UK brought a revocation action in the Milan CD against Labrador's patent claiming an instrument for detecting a biological analyte. Labrador had separately brought infringement proceedings in the Düsseldorf LD against French, German, Italian, Austria, Portuguese and Benelux bioMérieux entities (part of the same group as bioMérieux UK). These bioMérieux entities brought a counterclaim for revocation in the Düsseldorf LD and requested that the counterclaim be consolidated with the revocation action in the Milan CD. Permission to consolidate was given.
• bioMérieux challenged the patent on several grounds and filed a significant number of attacks, in total, filing around 50 invalidity attacks, over 12 added matter attacks, 3 novelty attacks, 1 insufficiency attack and had 6 different starting points for 30 inventive step attacks. Labrador only defended claims 9 and 14 of the patent as granted and filed a main request and 7 auxiliary requests.
• The Milan CLD initially asked bioMérieux to limit its number of arguments. In response, bioMérieux requested that the court indicate which arguments should be retained and which should be discarded. The Milan CD held that in light of the court's impartiality, it is not the court's role to indicate which attacks it considers to be the most promising or which are likely to be successful. As such, the court required bioMérieux to rank its attacks in order of importance and likelihood of success, citing the principles of proportionality and fairness from the preamble of the UPCA. The court stated that if the attacks the party considered most likely to succeed failed, then the other arguments would not succeed either.
• The court found that the patent as granted and the first auxiliary request lacked novelty as the claimed subject matter was directly and unambiguously disclosed in the prior art document known as "Clark". Although the second auxiliary request was found to be novel, it added matter beyond the original application.
• The third auxiliary request was found to be novel over several pieces of prior art (alone and in combination, and in combination with the common general knowledge). It also overcame arguments of lack of clarity, lack of inventive step and insufficiency. As such, the court concluded that claim 1 of the third auxiliary request was valid and, as claim 2 claimed a method corresponding to the instrument claimed in claim 1, claim 2 was also held to be valid.
• The court held that because the revocation case and counterclaim for revocation concerned the same group of parties and the same invalidity attacks against the same patent, the value of the proceedings should be set together at €5,000,000 and, as such, the ceiling of recoverable costs was €600,000, which applied to both the revocation claim and the counterclaim for revocation.
• The parties agreed that the legal costs of the successful party should be borne by the unsuccessful party and the amount of €600,000 was deemed undisputed.
• Labrador requested that the court keep the amount confidential, pursuant to Article 58 UPCA and Rule 262.2 RoP. However, the Milan CD held that the costs of proceedings are not covered by confidentiality unless they are "specifically indicative of the company's financial capacity, its commercial strategy, or the importance of the patent as a corporate asset". Here, the agreement on costs between the parties did not reveal anything about Labrador's financial capacity etc. and therefore the confidentiality request was rejected.
• At the oral hearing the parties clarified that it was up to the court to decide who was the successful party and what success meant. In accordance with Article 69 UPCA and Rule 118.5 RoP, the Milan CD held that Labrador was the most successful party. However, bioMérieux had some success as it initiated the revocation action and counterclaim against the patent as granted and that was not held valid (and neither were Labrador's main request or auxiliary requests 1 and 2), so the court ordered bioMérieux to pay two thirds of the costs (€400,000).

• Abbott, a market leader in continuous glucose monitoring (CMG) devices, brought a second application for provisional measures (including preliminary injunction) against China-based manufacturer of CGM systems, including the GlucoMen iCan and corresponding app, Sinocare, and Sinocare's Italy-based exclusive European distributor, Menarini, in relation to another of its patent.
• Abbott claimed that Sinocare and Menarini individually and jointly (directly or indirectly) infringed it patent with unitary effect (EP 471) relating to displays for a medical device. Abbott applied for an immediately enforceable injunction covering the UPCA territory and other provisional measures, including delivery up and provision of information relating to the alleged infringement.
• Sinocare and Menarini were given the opportunity to respond to the application. They asserted that they did not infringe the patent with the GlucoMen iCan and corresponding app because certain features of the claim were not reproduced, and the patent was more likely than not invalid due to lack of inventive step and added matter.
• As in the parallel provisional measures application, jurisdiction was contested with respect to Sinocare due to it not being domiciled in the EU and it claiming that (threatened) infringement by Sinocare in the UPCA territory had not been substantiated. Again, the court rejected these arguments, noting that it was undisputed that Sinocare makes the iCan CGM app available on its website specifically for countries in the UPCA territory and it is the manufacturer of the GlucoMen iCan. Sinocare and Menarini had also announced that they would cooperate in bringing the device into the European market. The court noted that this was at least combined/joint threatened infringement in the UPCA territory. Additionally, as the case concerned the alleged (threatened) infringement of the same patent in the same territory by the same attacked embodiment, Menarini could act as an anchor defendant under Article 7(2) of the recast Brussels Regulation.
• The urgency of Abbott's application was considered next, with the court finding that Abbott had made no unreasonable delay in seeking provisional measures. The Hague LD found that the iCan GMS App only became available in April 2025 and it was not unreasonable for Abbott to file its application just over two months afterwards because it needed time to "assess infringement".
• The court went on to consider claim construction as the parties disagreed on this. The court noted that the claim was particularly directed to a display that is configured to show a so-called timeline graph screen in which certain events are displayed. The Hague LD found Sinocare and Menarini's interpretation of the claim to be more likely than not correct and therefore the relevant feature of the claim was to be interpreted in a way that event data icons must be displayed on or near the graph line of the timeline graph.
• Therefore, a timeline graph screen where the timeline graph is displayed in one panel and the event data icons are displayed in another panel/section were not found to fall within the scope of the patent. Sinocare and Menarini were not found to infringe the patent because the timeline graph screen on the iCan CGM App displayed two separate panels and the event data icons were not included in the timeline graph.
• Due to the non-infringement finding, the court did not consider it necessary to discuss any validity arguments. Abbott's provisional measures application was dismissed and no preliminary injunction was granted.
• Abbott was ordered to pay an interim award of costs of €400,000.
• The parallel provisional measures proceedings between the same parties can be found here.

• In these proceedings, Amycel obtained a default judgment and a permanent cross-border injunction against a Polish defendant over its infringing brown mushroom strain "Cayene", following the earlier grant of a preliminary injunction.
• After difficulties serving Amycel's statement of claim, the court authorised alternative service under Rule 275 RoP and deemed service effective on 25 November 2024. The defendant's late filed statement of defence was not admitted and its Rule 320 RoP re-establishment request was rejected.
• As the court was satisfied that service was properly effected under Rules 275 and 277 RoP, it proceeded to a default decision under Rule 355 RoP (failure of defendant to lodge a defence within the time limit). The Hague LD acknowledged that under Rule 355.2 RoP, the claimant’s facts must justify the relief sought. The Hague LD took this to mean that in a default situation, the court must assess whether the facts are sufficiently substantiated by evidence and whether the requested measures and orders are not prima facie unlawful or unfounded, that is the patent in question must not be obviously invalid and the allegedly infringing product must not be obviously outside the scope of the patent.
• Amycel alleged direct infringement of its patent by the Cayene strain offered and traded in the Netherlands, Germany, France and Italy. On the merits, the court adopted its findings from the preliminary injunction decision, namely that the patent was more likely than not valid and infringed. It rejected a raft of late defence applications and exhibits submitted by the defendant as inadmissible.
• The court granted a permanent injunction covering the Netherlands, Germany, France and Italy. It also ordered the defendant to provide certain information relating to the infringement, send recall letters to customers, publish a corrective notice on its website, and destroy any infringing returned and stock product. The court awarded damages – to be assessed in later damages proceedings – with an interim award of €50,000.
• The court also ordered a penalty payment of up to €50,000 for each day or part of a day the injunction is not complied with (up to a maximum of €1,000,000) and €5,000 for each day of non-compliance with the other orders (up to a maximum of €100,000).

• Occlutech applied to the Hamburg LD for provisional measures (preliminary injunction) against Chinese company Lepu Medical and its Dutch subsidiary. Occlutech alleged that the Lepu companies directly infringed, or the infringement was imminent, its patent relating to a braided occlusion device  with their "MemoCarna ASD" and "MemoCarna VSD" medical implantable occlusion devices. The attacked embodiments had recently received CE-mark approvals and had been exhibited at trade shows in Europe and Asia.
• The Lepu companies did not object to the UPC's international jurisdiction over the dispute, accepting that the Dutch subsidiary acted as an anchor defendant for Chinese company under Article 31 UPCA, in conjunction with Articles 7(2) and 71b(2) of the recast Brussels Regulation. However, the Lepu companies did challenge the Hamburg LD's competence to hear the matter, arguing that there was no special connection or targeted marketing to Germany and no "imminent infringement".
• The court rejected this argument holding that it had competence under Article 33(1)(a) UPCA, as it was the LD hosted by the UPC state where the actual or threatened infringement has or may occur. There must be at least a plausible allegation of infringing acts by that party in the country in origin or a situation of imminent infringement (as recently explained by the Court of Appeal in Boehringer v Zentiva).
• The Hamburg LD drew an analogy with the Court of Appeal's reasoning in Boehringer v Zentiva, noting that the Court of Appeal had decided in the context of marketing generics that the mere application for a marketing authorisation did not amount to an imminent infringement but completion of national procedures for health and technology assessment, pricing and reimbursement could amount to an imminent infringement. In this case, implantable medical devices are subject to the Medical Devices Regulation, which stipulates that devices can only be put on the market or put into service if they comply with the Regulation and have undergone clinical evaluation. Obtaining an EU CE-mark is a prerequisite to putting a medical device on the market in the EU and that requires clinical evaluation.
• Accordingly, obtaining and announcing CE-marks for both attacked embodiments was held to indicate an expected market entry in any of the EU Member States in the foreseeable future, including Germany. Plus, the presentation of the attacked embodiments at a trade fair in Germany was a sufficient indication that marketing was directed at the German market. Due to the imminent infringement finding, the court left open the question whether the presentation of the devices at the trade fair turned an imminent infringement into an actual infringement under Article 25 UPCA.
• The defendants challenged the urgency with which Occlutech had acted in bringing the provisional measures proceedings. The defendants pointed to Occlutech's earlier knowledge of the alleged infringing devices from catalogues from 2023 and a Dubai conference. The court held that the applicant had treated the matter with the necessary urgency. It was not relevant at which point the applicant gained general knowledge of the infringing devices as long as their marketing in the EU could not have been considered imminent due to the lack of a CE-mark. Any knowledge prior to the CE-marks being granted was deemed irrelevant. It was acknowledged that the defendants announced their CE-mark approvals in April and May 2025, with Occlutech finding out about it later. Occlutech filed its application in June 2025 and the court found that it acted without undue delayed as it demonstrated that it investigated the defendants' activities in Europe/Germany, even though it was difficult to obtain information on the specific products as they are sold through direct sales channels or tenders with hospitals.
• The defendants also challenged the validity of the patent, alleging added matter and lack of novelty. The court found these attacks unconvincing and held that the patent was more likely than not valid. The attacked embodiments were also held to make literal use of claim 1 of the patent.
• The court weighed the parties' interests, finding that there were special circumstances justifying an injunction – namely, the parties were direct competitors and there was a likelihood that the launch of the attacked embodiments would result in lost sales for Occlutech due to the assumed lower price of the defendants' products. A preliminary injunction was granted, prohibiting the defendants from offering, placing on the market, using, importing and storing for those purposes the infringing products in Germany, France, Italy, the Netherlands and Ireland (the court noted that because of the imminent infringement finding an injunction covering all UPCA countries could have been granted under Article 34 UPCA, but this is not what Occlutech had requested).
• The defendants had sought security for costs from Occlutech, but the court dismissed the request. It stated that it was contradictory for the defendants to deny imminent entry into the market with the attacked embodiments, while at the same time requesting security. The information provided by the defendants did not allow the court to assess any possible damage if the provisional measures were later revoked.
• The court set a penalty payment of up to €250,000 for each case of non-compliance with the preliminary injunction.

• This decision is part of a wider dispute between Meril and Edwards relating to prosthetic heart valves and their delivery assembly.
• In this case, Meril filed a revocation action against one of Edwards' patents relating to a prosthetic heart valve and a delivery assembly. The patent in suit is a third-generation divisional application. Meril challenged validity on the basis of added matter, and lack of novelty and inventive step.
• Edwards responded by filing a defence to revocation, a request to maintain the patent as granted (or, in the alternative, in an amended form). Edwards also filed an application to amend the patent and a counterclaim for infringement by Meril's offering and selling the "Octacor THV" and the "Navigator Inception" (and later amended to include the "Octapro THV" and "Navigator Pro") in the UPCA territory.
• In response, Meril argued that it did not infringe the patent or, alternatively, the court should reject Edwards' request for an injunction pursuant to Article 63 UPCA as it would be "disproportionate", or further in the alternative, the court should refer a question to the CJEU on the interpretation of Article 3(2) of the Enforcement Directive. Its final alternative argument was that the court should exclude the Octacor system from any injunction in sizes in which other self-expandable valves are not available and stay the injunction for 12 months.
• The Paris CD rejected Meril's request to revoke the patent and upheld the patent in amended form (as per auxiliary request 2). It also found that Meril had infringed the patent and granted an injunction.
• The court first dealt with some procedural points. Although there were ongoing opposition proceedings before the EPO that the court had not originally been notified of, the Paris CD noted its discretion to stay its proceedings where there are parallel opposition proceedings. In this case, the court declined to exercise its jurisdiction, noting that neither party requested a stay of the proceedings, which "implicitly" demonstrated the parties' interests in getting a quick decision from the Paris CD.
• Next, he court did not allow Meril to plead grounds of invalidity that were filed late in the proceedings. The Paris CD confirmed that the UPC operates a "front loaded" system and claimants are not be allowed to gradually introduce new arguments. However, the court did allow both parties to submit new evidence that disputed facts or evidence already put forward by the other side.
• In relation to the oral hearing, the court had allowed the parties to use presentation slides during the hearing, to aid the court's interpretation. There was some argument between the parties over whether the slides had introduced new arguments and were therefore an inadmissible extension of the scope of the proceedings. The court disagreed that the slides from both sides had done this, finding that they merely strengthened arguments already introduced.
• Turning to the substance of the matter, the Paris CD followed the principles of claim interpretation set out by the Court of Appeal in Nanostring v 10x Genomics, noting that the claims needed to be interpreted in the context of the embodiments and diagrams included in the patent. This ultimately meant that some of the claims as granted were held invalid due to added matter.
• One of Edwards' auxiliary requests was deemed to be sufficiently novel and inventive to be valid. In considering inventive step, the Paris CD focused on a "holistic approach" to inventiveness, rather than focusing on "isolated distinguishing features" of the claim. Although the person skilled in the art may have been aware of certain features from the prior art and it may have been possible to add them to the claim, the court found that there was no clear motivation to do so in this case.
• Article 63 UPCA sets out that the court may grant an injunction against an infringer aimed at prohibiting the continuation of the infringement. However, Article 64(4) UPCA states that in considering corrective measures, the court must take into account the need for "proportionality between the seriousness of the infringement and the remedies to be ordered, the willingness of the infringer to convert the materials into a non-infringing state, as well as the interests of third parties". The court noted that this appeared to be consistent with the Enforcement Directive (meaning a referral to the CJEU was not necessary) and the Agreement on Trade-Related Aspects of Intellectual Property. In line with this legislative framework, a general injunction to restrain future infringements is the "normal remedy" for patent infringement, but the court does have the discretion to tailor the injunction by "limiting its substantive scope or temporal effect" so that it is not disproportionate.
• Meril had sought to argue that no injunction should be granted because it would limit the diversity of treatments available to the detriment of the public interest. The court decided that Meril had not demonstrated that the availability of a variety of products in this specific field was essential to public health and therefore the "public interest" was not impacted. However, Meril did demonstrate that there was a "clear public need" for its XL-sized valves, which were carved out of the injunction (this was similar to the approach taken by the Munich LD in relation to another dispute between the same parties).
• Meril was also ordered to provide certain information relating to the infringement and to deliver up the infringing products.
• A recurring penalty payment of €20,000 per product was imposed for any non-compliance with the injunction and a recurring penalty payment of €1,000 for each day of delay with respect to the provision of information and delivery up.

• Abbott is a leading provider of continuous glucose monitoring (CGM) devices. In June 2025, it applied for provisional measures (including a preliminary injunction) against two companies – China-based manufacturer of CGM systems, including the GlucoMen iCan, Sinocare, and Sinocare's Italy-based exclusive European distributor, Menarini.
• Abbott claimed that Sinocare and Menarini individually and jointly (directly or indirectly) infringed its patent with unitary effect (EP 633) relating to analyte sensor assemblies. Sinocare and Menarini were given the opportunity to object to the application and in doing so asserted that they did not infringe the patent because it did not employ certain features of the claim in the GlucoMen iCan and that the patent was more likely than not invalid due to lack of novelty and/or inventive step and because the subclaims add matter and insufficiently disclosed the invention.
• Firstly, The Hague LD held that it had both competence and jurisdiction to hear the claim. Regarding competence, Abbott was held to have provided evidence of alleged infringement within the UPCA territory by Menarini, including in the Netherlands, which satisfied the court's competence requirements.
• The jurisdiction of the court was contested with respect to Sinocare due to it not being domiciled in the EU. It also claimed that (threatened) infringement by Sinocare in the UPCA territory had not been substantiated. The court rejected these arguments, noting that it was undisputed that Sinocare was the manufacturer of the GlucoMen iCan and that Sinocare and Menarini had announced that they would cooperate in bringing the device into the European market. The court noted that this was at least combined/joint threatened infringement in the UPCA territory. Additionally, as the case concerned the alleged (threatened) infringement of the same patent in the same territory by the same attacked embodiment, Menarini could act as an anchor defendant under Article 7(2) of the recast Brussels Regulation.
• Next, the court considered the urgency of Abbott's application, finding that Abbott had made no unreasonable delay in seeking provisional measures. It had filed its application approximately one month after publication of the grant of the patent. Abbott was also found to have sufficiently argued that the measures were objectively necessary/urgent to stop (imminent) infringement.
• The Hague LD also held that it was more likely than not that Abbott's patent would be held valid and the invalidity defences raised by Sinocare and Menarini were "not expected to affect the validity of the patent in the main proceedings".
• Based on the the Hague LD's wider interpretation of the claim, Sinocare and Menarini's argument that its product did not employ certain features of the claim did not hold true. The court found that on the correct claim interpretation, the features were present in the GlucoMen iCan and therefore it was more likely that not that Sinocare and Menarini infringed the patent.
• In view of the likelihood of validity and infringement, Abbott's requested measures were granted so far as necessary and proportionate. The Hague LD granted the preliminary injunction covering the whole UPCA territory, as requested. Necessity was made out due to the risk of lost sales and price erosion. The court also ordered limited provision of information relating to the infringement and delivery up of any GlucoMen iCan products held or owned by Sinocare and Menarini in the UPCA territory. The court did not order Abbott's request for a declaration that the GlucoMen iCan is considered "goods suspected of infringing an intellectual property right" as such a declaration is not possible as a provisional measure. The order was made immediately enforceable.
• Abbott was not ordered to pay any security for costs because Sinocare and Menarini "did not argue let alone demonstrate" that Abbott would not or could not pay damages if the injunction was reversed on appeal or in the proceedings on the merits.

• HP sought a preliminary injunction and further provisional measures against two defendants, for alleged patent infringement, concerning its patent for electronic circuitry used in printer ink cartridges. HP claimed that the two defendant were dealing in "rebuilt" HP ink cartridges. The first defendant is based in Germany and sells rebuilt cartridges online via its own website to customers in several UPC countries. The second defendant is based in China and also sells rebuilt cartridges online, but via the Amazon platform targeted at consumers in various UPC countries.
• Within one month of service of HP's application, the first defendant notified the court that a settlement had been reached between the two parties. The first defendant stated that it would not defend itself against four of five of HP's requests, and that HP had agreed to drop its final request (relating to costs of the proceedings). HP invited the court to issue a judgment by default against the first defendant in relation to the four claims it was not defending itself against.
• Service out of the jurisdiction in China on the second defendant had not been completed by the date of the Düsseldorf LD's decision. However, HP still requested a decision by default against the second defendant.
• This decision only concerned HP's application for provisional measures and default judgment against first defendant.
• The Düsseldorf LD first considered what type of order it should produce. Pursuant to Rule 209.1(a), the UPC has the discretion to inform a defendant about an application for provisional measures and invite them to lodge an objection to the application within a specified time period. If a defendant does not lodge an objection within that time period or does not substantiate its objection (as was the case here), the application for provisional measures can be decided based on the applicant's submissions by means of a regular order in the preliminary injunction proceedings.
• A decision by default (Rule 355.1(a) RoP) is not something that the court would consider in these circumstances. Firstly, this is because a decision by default is not provided for in Rules 205 RoP et seq for this scenario. Secondly, only a regular preliminary injunction order would be consistent with the underlying interests involved. If a defendant declines the court's invitation to lodge an objection against the provisional measures application then there is no reason to grant them the "advantages of a decision by default". The possibility of setting aside the decision by default would conflict with the applicant's interest in effectively enforcing their patent in preliminary injunction proceedings.
• The fact that HP had requested a decision by default, in addition to its provisional measures application, did not prevent a regular preliminary injunction order being granted. The court held that HP's default judgment request merely supplemented its provisional measures application and therefore the court was able to grant a preliminary injunction or other provisional measures through a regular order and still comply with Article 76(1) UPCA (that is, deciding in accordance with the requests of the parties and not awarding more than is requested).
• Proceeding on the basis, the court considered the application for provisional measures as directed against the first defendant in the usual way. It found that the application both admissible and successful on the merits.
• The first defendant did not challenge the validity of the patent, therefore the Düsseldorf LD did not consider validity in detail. It stated that since the defendant had not put forward any arguments against validity and nor had there been any nullity or revocation proceedings (national or UPC), there was no reason for it to doubt the validity of the patent.
• On infringement, the court found that the products sold by the first defendant made direct and literal use of the technical teaching of claim 13 of the patent because they had the same logic circuitry on the cartridge which functioned as a controller. HP supplied numerous images to demonstrate the similarities.
• The court also found that the balance of interests favoured the grant of the preliminary injunction, in part because the parties were direct competitors and there was a potential for price erosion.
• The court also found that HP had not hesitated in applying for provisional measures. HP had lodged its application approximately two weeks after becoming aware of the infringement.
• Lastly, the court found that the measures were objectively necessary because of the potential loss of revenue, the risk of permanent loss of market share, and the potential harm to HP's reputation by association with the lower-quality infringing products.
• The court granted the preliminary injunction against the first defendant and ordered it to provide information relating to the infringement. The court set a penalty payment of up to €1000 per infringing device made, offered, placed on the market etc or up to €250,000 per day for non-compliance with the preliminary injunction and up to €100,000 per day for failing to provide the requested information. HP has 31 calendar days or 20 working days (which is longer) from service of the order on the first defendant to commence proceedings on the merits, otherwise the provisional measures order will be revoked or otherwise cease to have effect.
• No security for costs were ordered to be paid by HP because the first defendant stated that it did not intend to challenge the application and it did not present arguments against the provisional measures to the court.

• HP had sought a preliminary injunction and further provisional measures against the defendants for alleged infringement of two of its patents.
• The application had to be served outside of the jurisdiction on the first defendant. Service was initiated in June 2025 via the official online portal of the Central Authority of China. According to the portal, the documents were forwarded to the Supreme People's Court for further processing the following day. No further processing steps could be seen on the portal.
• HP asked the first defendant to voluntarily accept service by mid-September 2025. This was unsuccessful. Following this, HP requested that the Düsseldorf LD inquire as to the status of the service with the Central Authority of China. The Düsseldorf LD received a response noting that the documents had not been served as there was no company at the address provided.
• HP requested an order from the Düsseldorf LD acknowledging that the steps already taken constituted good service as per Rule 275.2 RoP.
• The Düsseldorf LD stated that it had complied with all formal requirements set out in the Hague Convention, to which the Chinese authorities did not object. The court held that HP had "credibly demonstrated" that the address provided for service was accurate and corresponded with the company's registered address.
• The Düsseldorf LD noted that Article 15(3) of the Hague Convention recognises that formal service requirements and associated time limits (in Article 15(2) of the Hague Convention) may prevent an applicant for provisional measures from having effective protection and therefore allows the ordering of provisional measures in urgent cases.
• In this case, all efforts to serve the application or otherwise bring it to the first defendant's attention had failed. As such, it was necessary to order that the steps taken constituted good service under Rule 275.2 RoP. Service was deemed to be effective as of the date of this decision.
• A related decision can be found here.

• This was a case relating to infringement and validity of a patent for egg boxes. Hartmann issued proceedings against Omni-Pac in the Düsseldorf LD for infringement of the German, French and Dutch designations of its patent for "A display and distribution package for eggs". Omni-Pac counterclaimed for revocation.
• Hartmann argued that Omni-Pac's products infringed on a literal basis. It subsequently sought to introduce a claim for infringement by equivalence in its rejoinder to the reply to the counterclaim revocation. Omni-Pak challenged the priority of certain claims and argued the patent lacked novelty and inventive step.
• Regarding priority, the court stated that "[t]he term "the same invention" in Article 87 EPC must be interpreted as meaning that a claimed invention is to be regarded as the same invention as the invention in an earlier application if the skilled person can derive the subject-matter of the claim directly and unambiguously from the earlier application as a whole using general technical knowledge". It noted that this standard corresponded to the disclosure standard for added matter, as set out by the Court of Appeal in Abbot v Sibbio. The decisive factor was what the skilled person, using their common general knowledge, can directly and unambiguously derive from the earlier filing, including any implicitly disclosed subject matter.
• The court held that claim 1 could validly claim priority to the first priority document. Even though Figures 8 to 16 of the patent were not found in the first priority document, the essential features of claim 1 including “two substantially planar end surfaces” were disclosed. On the other hand, claim 6 could not claim priority from the first priority document. Features relating to the claimed manufacturing method were not disclosed. Claim 6 was entitled to the second priority date.
• The novelty attack failed. The first piece of prior art (EP 1 389 590 A1) did not disclose feature 1 of claim 1, which required the packaging to be made of fibrous material. The second piece of prior art (EP 1 373 100 B1) did not disclose features 2.2, 2.2.1 and 5. In particular, it disclosed flexible flaps, not the claimed retainment projection/nose arrangement, and did not clearly disclose a label covering the top and a substantial part of the front. Claim 6 was novel over the intervening prior art, WO 2013/164664. There was no clear and direct disclosure of features 3 to 5.
• For inventive step, the court applied an objective obviousness assessment under Article 56 EPC rather than the EPO’s problem-solution approach. It referred to the Munich CD's decision in Sanofi v Amgen and noted that the assessment always requires a case-by-case evaluation taking into account all relevant facts and circumstances. The subjective ideas of the applicant or inventor were irrelevant. The only relevant factor is what the claimed invention actually contributed to the state of the art. 
• The court decided that claim 1 as granted lacked inventive step. Starting from EP 1 389 590 A1, the only difference was in the packaging material. The court stated that "a person skilled in the art is accustomed to selecting a suitable material from among those known to be suitable for a particular purpose. The selection of a material from a narrowly defined range of possible suitable materials available to the person skilled in the art does not normally require any special skills and therefore does not constitute an inventive step." Pulp was a leading material for egg cartons and it was obvious to use it. Arguments that pulp cartons could not be reused hygienically were rejected; there was no such teaching in the patent.
• On the other hand, claim 6 was upheld. WO 2013/164664 did not disclose the method steps for positioning the retainment projection and aperture during moulding to compensate cover part deformations, removal from the mould, and oven drying. When considering the three prior art documents in combination, they did not render the specific method, including the required label coverage of the top surface, obvious.
• Auxiliary request 1 failed to overcome obviousness. Auxiliary request 2 (adding a feature that the nose of the fastening works as a hook) succeeded, and claim 1 was maintained in that form.
• On the court's construction, the infringement claims failed. The allegedly infringing packages employed a flexible closure flap rather than the retainment projection required by the claims. Claim features requiring an upwardly extending projection with a downwardly and outwardly projecting nose were not implemented.
• The argument of infringement by equivalence had been late filed and was held inadmissible under Rule 9(2) RoP. In any event, there was no technical-functional equivalence so infringement would have been rejected.

• This was an application by Insulet for costs against EOFLOW additional to those provisionally settled by a decision issued on 22 July 2025. It sought about €195,000 in addition to the provisional amount of €200,000.
• The Milan CD found the application admissible and partly well founded.
• It stated that, in accordance with Article 69(1) UPCA and Rule 152.1 RoP, Insulet was entitled to recover reasonable and proportionate costs for representation in the proceedings on the merits. Insulet's costs were within the UPC's Scale of Ceilings for Recoverable Costs adopted under Rule 152.2 RoP.
• The court excluded a number of items from recoverable costs. In particular, it excluded:
  1. Costs that were "unintelligible" because the relevant invoices were redacted. Pursuant to Rule 156 RoP, an applicant must indicate exactly which cost item it is requesting payment for so the judge can review it. The court said that a party has a choice "either submit the costs to the Court or keep them confidential and waive their payment. Obscured costs cannot be settled, even if they are only partly redacted, as it would be unclear which part of the costs is related to the proceedings and which part is not".
  2. Costs relating to the applicant's personal circumstances must also be excluded, giving the example of filing a motion to reschedule an interim conference due to a conflicting hearing. The court stated that it was not reasonable and proportionate for the losing party to pay for the scheduling problems of the applicant's lawyers.
  3. Costs relating to enforcement must be excluded as they do not fall within the scope of Rule 151 RoP. Not only was enforcement of a matter for the national courts and outside of the jurisdiction of the UPC, but the wording of Rule 150 RoP did not allow for the compensation of costs incurred after the publication of the decision.
• Having excluded unrecoverable costs, the court assessed whether the remainder of about €157,000 was proportionate. It noted that assessment focused on amount of costs, rather than their necessity. The court took into account a "fair balance" between the complexity of the case and necessary preparations. In light of this, it made an "equitable reduction" of 30% or the costs deemed reasonable. It awarded Insulet nearly €115,000 additional costs.

• This decision concerns a dispute between Fujifilm and Kodak in relation to Fujifilm's patent for planographic printing plates. Fujifilm had requested an injunction, orders to provide information in relation to the infringement to be provided within twenty-one days of the date of service of the decision, as well as orders for the destruction and recall of the infringing products. Fujifilm also requested a penalty be set in case of non-compliance with the injunction and the provision of information only.
• The Mannheim LD found Fujifilm's patent valid and infringed by Kodak and issued an injunction with an order for the payment of a penalty in case of non-compliance. It also granted the order for information, recall and removal from channels of commerce, but no penalty order was issued in relation to those orders.
• In relation to the order to provide information, the Mannheim LD exercised its discretion not to set a deadline for the information to be provided or for a penalty amount to be set. It held that these points should be addressed, if required, in an application to enforce the order.
• In April 2025, Fujifilm uploaded an enforcement notice to the UPC's case management system and requested that the Mannheim LD issued a warning to Kodak that in the event of a breach or failure to comply with the order in relation to the provision of information after the expiry of three weeks following service of the notification, Kodak should pay a penalty of up to €30,000 per day for delay and/or non-compliance. Fujifilm also uploaded similar notices with respect to the other orders but stated that the time period for compliance should be one week rather than three. Subsequently, Fujifilm also filed an application for the imposition of a penalty and for an order to take a substitutive measure.
• The judge-rapporteur rejected Fujifilm's requests for a warning. On review, the panel also denied the orders.
• Kodak argued that Fujifilm's enforcement notices: i) did not comply with the translation requirements of Rule 118.8 RoP; ii) they were unclear and conditional on the warning that had not been issued; and, iii) the time periods for compliance were not validly set and were too short. It also noted that it was working to comply with the orders. The Mannheim LD rejected these arguments. It also rejected Kodak's request for confidentiality with respect to information ordered to be provided.
• The Mannheim LD did order Kodak to pay a one-off amount of €100,000 within two weeks from the date of service of its order for failure to comply with parts of its original order and an additional penalty of €2,500 per day for further non-compliance until 4 August 2025. For every further day of non-compliance after 4 August 2025, the penalty amount was set at €10,000 per day. Kodak appealed to the Court of Appeal.
• The Court of Appeal gave guidance on the interpretation of the system of penalties set out in Rules 354.3 and 354.4 RoP. An order or decision may include a penalty amount (Rule 354.3 RoP). Generally, a penalty amount should be included in the order or decision on the merits as this "enhances legal certainty". However, there is an exception to the rule that a penalty amount may also be issued separately in a later order but which relates to an earlier order or decision. Additionally, the penalty amount for non-compliance may be set by the court, considering the importance of the order in question. The amount should be "sufficiently deterrent to be coercive, but also within reasonable limits for it to be an appropriate (proportionate) penalty".
• The penalty order must also specify the occurrence on which the penalty order should be paid, for example, as a lump sum or (preferably) for non-compliance per a specified time period, per item, per act etc. A penalty order may also set a maximum amount of penalties that may be paid overall, but that does not stop the court increasing the maximum amount in a further order for further non-compliance, if required (Rule 354.3 RoP).
• The suggested penalty amount for non-compliance as well as the time period for compliance must be included in the claimant's application. It is incumbent upon the defendant to comment on the penalty amount and time period suggested by the claimant during the relevant proceedings. If the claimant has not included a suggested amount and/or time period, the defendant may still comment on what it considers reasonable and feasible.
• If no time period for compliance is contained in the penalty order, it is the responsibility of the claimant to set a time period within the relevant order. It then falls on the defendant to dispute the reasonableness of that time period immediately after notification – it should not wait until the time period has elapsed.
• When a time period is set by the claimant and the parties disagree, the court must determine the time period based on the parties' submissions as per Rule 354.4 RoP. The reference in Rule 354.4 RoP to "penalty payments provided for in the order" means that any order to pay any penalty sum in enforcement proceedings according to this rule must be based on a prior penalty order having been made.
• If the claimant alleges that a defendant has not or has not in a timely fashion complied with a penalty-reinforced order, a penalty does not automatically become payable. The claimant must request that the court order the defendant to pay the penalty sum. The penalty amounts and time periods in the order will generally be the basis for the calculation, but the court may deviate from that in favour of the defendant for reasons of reasonableness and proportionality, if required. The court will take into account factors such as the severity of the breach, its duration, and the defendant's ability to pay.
• The burden of proof that a defendant has complied with a penalty-reinforced order lies with the defendant.
• On the basis of these principles, Kodak's appeal was successful in part. As per Rule 354.4 RoP, any order for the payment of a penalty sum due to non-compliance requires a prior order reinforced by a penalty payment that has not been complied with. As such, the Court of Appeal held that the €100,000 lump sum payment Kodak was order to pay should be set aside as it lacked legal basis because it was not part of the original order.
• The other penalty amounts set by the Mannheim LD were upheld. The Court of Appeal noted that the Court of First Instance has a "wide discretion" in this regard and Kodak had not convinced it that the amounts set were inappropriate. If Kodak believes there are mitigating factors that call into question the amounts, these must be submitted and substantiated by Kodak and decided upon by the Mannheim LD in proceedings pursuant to Rule 354.4 RoP.
• None of Kodak's other arguments were upheld. Kodak's complaint regarding inadequate translation was rejected because the information concerned was not essential to the local enforcer therefore a translation was not necessary.

• This decision concerned an infringement claim brought by Wonderland against Cybex in the Düsseldorf LD in relation to its patent concerning a swivel locking device for a stroller wheel.
• Wonderland alleged that the challenged embodiment made use of features 1.4 and 1.6 of claim 1 by equivalent means, while the other features of the claim were infringed literally. In its statement of defence, Cybex contested the literal infringement of features 1.9 and 1.10.
• In its reply, Wonderland argued that if the court were to find that the challenged embodiment did not infringe those features literally, then infringement by equivalence would also apply. On the same day, Wonderland applied to change its claim to add an auxiliary request claiming infringement by equivalence in relation to features 1.9 and 1.10, in addition to features 1.4 and 1.6. Cybex objected to the application.
• The judge-rapporteur dismissed Wonderland's application, holding that Rule 263 RoP (leave to change or amend case) did not apply to the extension of the equivalence argument as it did not amount to a change in the nature or scope of the dispute. Therefore, Wonderland was able to make the arguments without amending its claim.
• Cybex requested a panel review of the judge-rapporteur's order as they believed the reasoning was disadvantageous to them. Cybex argued that the judge-rapporteur was wrong to state that all of the components of the attacked embodiment invoked under Wonderland's auxiliary request were identified in Wonderland's statement of claim. They maintained that the "cavity" and "clasping mechanism" targeted by the auxiliary request were not identified in Wonderland's statement of claim and that they appeared for the first time in Wonderland's reply to Cybex's statement of defence.
• Wonderland argued that Cybex's request for a panel review was inadmissible because Cybex was not disadvantaged by the order as the application was rejected.
• The Düsseldorf LD panel held that Cybex's application was admissible but unsuccessful on the merits. The panel upheld the judge-rapporteur's decision as it was based on the correct legal standard. An equivalence argument does not necessarily change the nature and scope of the dispute. The panel held that the judge-rapporteur had rightfully concluded that the fact that Wonderland seeks to claim infringement by equivalence for not only features 1.4 and 1.6 but also for features 1.9 and 1.10 did not alter the nature or scope of the dispute and therefore did not constitute an amendment of the case. The equivalence argument is still based on the same patent and directed to the same allegedly infringing products (namely, strollers with swivel locking devices).
• Cybex did not present any arguments to the panel that would have led them to reach a different conclusion on the applicability of Rule 263 RoP. The fact that the components affected by the extension of the equivalence claim were not designated as such (for example "cavity") in Wonderland's statement of claim did not mean that a different product was affected.
• A related decision can be found here.

• This decision concerned an infringement claim brought in the Munich LD by Heraeus against Vibrantz. Heraeus is a German developer and vendor of materials solutions in assembly technology. Vibrantz is a German manufacturer of coating chemicals and is in direct competition with Heraeus. Heraeus alleged infringement of its patent concerning sintered metal preparations for joining components in Germany, France, Italy and Romania. Vibrantz counterclaimed for revocation in those countries.
• Vibrantz had previously brought invalidity proceedings against the German designation of the patent in the German Federal Patent Court, which in 2023 had upheld that designation in amended form. Heraeus only defended an auxiliary request reflecting this amended form for all jurisdictions. It argued that Vibrantz's revocation counterclaim was barred under Rule 362 RoP on the basis of res judicata. As the UPC here was deciding on the German part of a patent in the context of a concurrent jurisdiction, the UPC was deemed, as regards that German part, to be a German court. It was thus bound by res judicata. It was immaterial that the UPC also had the power to decide on other national parts of the patent.
• The Munich LD noted that the CJEU had pointed out the importance of res judicata for legal certainty. In this case, both the UPC and the Federal Patent Court had jurisdiction as German national courts. As the UPCA does not have specific provisions on the binding effect of a final judgment dismissing a national revocation action, the UPC needed to apply national law to assess the effect of the Federal Patent Court's judgment. According to that standard, the judgment was binding on the parties in respect of the grounds of invalidity raised in the earlier proceedings. There was therefore an absolute bar under Rule 362 RoP to Vibrantz challenging the German designation for lack of novelty and inventive step. However, Vibrantz could challenge the other designations based on those grounds. As insufficiency had not been raised in the national proceedings, Vibrantz could challenge the German designation on that basis.
• As Heraeus only defended the non-German designations according to its auxiliary request, the court declared the claims extending beyond that invalid without substantive examination. It went on to consider the arguments relating to novelty and inventive step of the amended claims. These arguments were rejected. The court held that a number of features of the claims were not explicitly disclosed, agreeing with the patentee that "a combination of five documents with specialist knowledge does not destroy novelty." For inventive step, the Munich LD applied "the problem-solution approach developed by the Boards of Appeal of the European Patent Office" and concluded that the claims were inventive. The court considered that the approach applied by the Munich CD in Sanofi v Amgen would not have produced a different result.
• The Munich LD also rejected the insufficiency arguments. Aspects of Vibrantz's argument essentially related to lack of clarity, which is not a ground of invalidity. It had also failed to put forward any significant arguments to show that the claim was not feasible across its breadth.
• The court considered that Vibrantz's products satisfied the amended claims directly and literally. However, Vibrantz argued that it had a right under Article 28 UPCA to continue use of the invention based on private prior use of certain sinter pastes and silver flakes. The court noted that under Article 28 UPCA, a party can only invoke rights granted by national regulations and the existence of the right must be demonstrated for each UPC state. Vibrantz referred the court to the relevant provisions of German law and provided evidence that it had formulated relevant sintering pastes in Germany.
• The court considered it was sufficient under German law that Vibrantz had decided to use formulations before the priority date that would inevitably exhibit the relevant claim features, and held that it had a right of prior use that covered Germany.
• Heraeus had not provided evidence of infringing acts in France, Italy or Romania. Instead, it had argued a risk of infringement in those countries derived from infringing acts in Germany. As Vibrantz's acts in Germany were covered by its right of prior use and not infringing, the court held they did not give rise to a risk of infringement elsewhere.

• This decision concerned an infringement claim brought by Motorola against ASUSTek in the Munich LD. Motorola alleged infringement of claims 1 and 11 of its patent concerning a method for reconfiguring radio bearers in a manner impacting the security keys. Motorola argued that the 5G standard implements the teaching of the patent, and therefore all of ASUSTek's 5G-compatible devices infringed.
• ASUSTek contested infringement and counterclaimed for revocation of the claims in issue.
• It alleged that the subject-matter of the claims was not novel and added matter.
• The Munich LD applied the Court of Appeal's decision in respect of added matter in Abbott v Sibio and expert e-commerce v Seoul Viosys. It noted that the court must first ascertain what information the skilled person, with their common general knowledge, would directly and unambiguously derive from the application as a whole. The disclosure includes implicitly disclosed subject matter, that is that which is clearly and unambiguously evident from what is expressly stated. The patent in suit was a divisional application, so the subject matter must not extend beyond either the application as filed or the original parent application.
• ASUSTek's arguments included that the patent in suit described two different messages, a "first connection reconfiguration message" and a "second connection reconfiguration message", for the first time and that a feature relating to the bearer identification field had been deleted.
• The court found that the parent application neither explicitly nor implicitly disclosed the cumulative features of a first and second reconfiguration message, as found in claims 1 and 11. The parent application referred only to a reconfiguration message, with no disclosure of a further (second) reconfiguration message.
• The parent application also consistently indicated that the bearer identification feature was essential and Motorola failed to convince the court that its deletion was permissible. First, the reference to the general principle to consider the entirety of the original documents does not explain why it should be dispensable. Second, the fact that the EPO did not object did not constitute a substantive justification.
• The counterclaim for revocation therefore succeeded, on the grounds that claims 1 and 11 of the patent contained added matter.
• The court ordered the revocation of claims 1 and 11 and dismissed the infringement action.

• This judgment concerned an infringement claim brought by HL Display against Black Sheep (a Dutch company) in relation to a system for securing shelf accessories to a shelf. HL Display's patent is in force in a number of states including UPC contracting member states (such as the Netherlands, France and Germany), non-UPC EU Member States (such as Ireland and Poland), non-EU Lugano contracting states (such as Norway and Switzerland), and non-UPC, non-EU states (such as the UK and Liechtenstein).
• Black Sheep denied infringement and claimed that the patent was invalid on grounds of added matter and lack of inventive step. Black Sheep clarified that its counterclaim for revocation applied to the designations from UPC contracting member states only and it was to be considered a defence in relation to non-UPC contracting member state designations. In addition, it confirmed to the court that no revocation claims had been brought in any of the non-UPC countries.
• On the basis of the CJEU's decision in BSH v Electrolux, the Hague LD assumed jurisdiction for hearing the infringement claims relating all of the patent's designations. As Black Sheep was domiciled in the Netherlands, it did not dispute the court's international jurisdiction, including its long-arm jurisdiction, or the LD's internal competence to hear the case.
• The Hague LD found that it was "clear" that the patent was valid. In considering added matter, the court applied the standard recently set out by the Court of Appeal in expert v Seoul Viosys. On this basis, the court concluded that certain allegedly omitted features of claim 1 did not amount to added matter as there was no inextricable link between the allegedly omitted features and the other features of the claim. The addition of a feature to claim 1 that was included in claim 2 of the original application was also found not have amounted to added matter.
• In considering inventive step, the court applied the problem-solution approach because this is what had been applied by the parties. This argument also failed. The court concluded that Black Sheep had ''not showed any hint in the prior art given to the skilled person towards the claimed solution and is not able to explain why the skilled person would make [the modification claimed to be obvious]".
• Accordingly, the Hague LD dismissed Black Sheep's counterclaim for revocation with respect to designations in force in UPC contracting member states. For the designations in force in non-UPC, EU Member States and Lugano signatories, in accordance with BSH v Electrolux, the court found that there was no serious, non-negligible chance that the patent would be revoked by the competent national authorities and therefore it could proceed to determine the infringement claims. Again in line with BSH v Electrolux, for non-UPC, non-EU states the court made an inter partes finding that the patent was valid.
• The court also found the patent to be infringed, both directly and indirectly. Black Sheep had argued that HL Display had not sufficiently demonstrated that it had performed or was performing infringing acts. The court noted that before it considers the question of evidence, a statement of fact should first be sufficiently denied. It concluded that Black Sheep had not done this. In fact, it held Black Sheep to have conceded in its statement of defence that the infringing products had been "on the market within the territory for which [that patent] is valid since at least 2019". As a result of this concession, the court left it undecided whether the products were also offered on its website.
• In light of these findings, the Hague LD granted an injunction covering all states in which the patent was in force, which inevitably covered non-UPC EU and non-EU states.
• For more information on the jurisdictional aspects of this case, see our Insight here.

• Dolby and Sun Patent Trust filed infringement actions against Roku at the Munich LD. Roku filed a preliminary objection in both sets of proceedings and requested that the actions be dismissed as inadmissible or, alternatively, that the proceedings be stayed for questions to be referred to the CJEU on the UPCA's compatibility with EU law. The objections were dismissed by the judge-rapporteurs. Roku appealed to the Court of Appeal.
• The Court of Appeal dismissed Roku's appeals.
• Rule 19 RoP contains an exhaustive list of preliminary objections. The Court of Appeal confirmed that a preliminary objection to the court's competence, including its international jurisdiction, is permitted under Rule 19.1(a) RoP. However, the Munich LD had correctly assumed that the requirements for international jurisdiction under Article 31 UPCA, in conjunction with Articles 71a and 71b of the recast Brussels Regulation, were met in this case.
• Under Article 31 UPCA, the international jurisdiction of the court is determined by reference to Article 71a and 71b recast Brussels Regulation. Pursuant to Article 71b(1), a common court has jurisdiction where a national court would have had jurisdiction for a matter covered by the agreement establishing the common court. In this case, the agreement establishing the common court is the UPCA and the field of law is patent law, a field over which national courts had competence. As such, the Court of Appeal stated that Dolby and Sun Patent had "conclusively argued" that an act of infringement justifying the jurisdiction of the UPC had taken place.
• The Court of Appeal also confirmed that the argument that Article 32 UPCA (competence of the court) is not applicable can be a ground for a preliminary objection under Rule 19.1 RoP, but that was not successful here.
• The Court of Appeal was clear that, contrary to Roku's arguments, the allocation of international jurisdiction and competence of the UPC under Article 31 (in conjunction with Article 71a et seq of the recast Brussels Regulation) and Article 32 UPC do not constitute an interference with division of tasks between the CJEU and the national courts laid down in the Treaty on EU (TEU) or the Treaty on the Functioning of the EU (TFEU). The UPC is, as required by the CJEU, subject to appropriate mechanisms to ensure effectiveness of EU law. Accordingly, it was not necessary for the Court of Appeal to refer the question of compatibility to the CJEU.
• The Court of Appeal dismissed Roku's other claims. These included: i) the argument that there was a violation of the right to a lawful judge pursuant to the Charter of Fundamental Rights of the EU and European Convention on Human Rights (which the court said would not be admissible unless it fell within one of the exhaustive grounds for objection in Rule 19.1 RoP); and, ii) that there was a violation of the right to a lawful judge due to the lack of a CD in London under Article 7(2) UPCA (the Court of Appeal noted that the Administrative Committee of the UPCA was authorised under the UPCA to determine that Milan would replace London as a CD).
• Lastly, Roku's request to pay a single court fee across both appeals was rejected. Fees are payable for each appeal even when the appeals concern the same issues.

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