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Decision date:

19 December 2025

Court of Appeal

Docket Navigator v Syngenta (UPC_CoA_523/2024)

This decision of the Court of Appeal concerned access to written pleadings and evidence lodged at the UPC.
Docket Navigator, a US-based patent litigation intelligence platform, requested access to written pleadings and evidence from concluded appeal proceedings in Sumi Agro v Syngenta. It had described its request as a test case to evaluate the UPC's willingness to allow access to documents for concluded cases, which Docket Navigator intended to make publicly available to its more than 15,000 subscribers, including judges, lawyers and legal professionals.
The Court of Appeal rejected the request, holding that the objectives of balancing interests pursuant to Article 45 UPCA and the requirement of representation would be compromised if access was granted to a company intending to make documents publicly available on its patent litigation intelligence platform.
The requested documents comprised the statement of appeal, response to statement of appeal, and various exhibits filed by both parties. Docket Navigator argued that since proceedings had concluded by final decision of the Court of Appeal, protecting the integrity of proceedings no longer played a role in the balancing of interests, and that it and its subscribers had a legitimate interest in the documents to better understand the court's decision. Docket Navigator offered to include disclaimers on its database limiting use of the documents to purposes consistent with open justice principles and confirmed it would not use them to train artificial intelligence systems.
Sumi Agro objected on the ground that the appeal proceedings were not yet concluded. It pointed to a pending application for rehearing under Rule 245 RoP as creating a need to protect the integrity of proceedings. Syngenta similarly requested dismissal, submitting that Docket Navigator's intention to build a database containing all filed materials and make them available to subscribers for a fee corresponded only to a financial interest, and that the court's control of the documents would be circumvented if files were available in Docket Navigator's database to anyone. Furthermore, both parties raised copyright concerns, arguing that written submissions and certain evidence are generally protected by copyright and that any copying or publication would constitute infringement not covered by fair use exemptions under European copyright law.
The Court of Appeal referred to the principles set out by the Court of Appeal in relation to access to documents in Ocado v Autostore.
The court held that copyright is not a general interest that must be observed pursuant to Article 45 UPCA when a member of the public requests access to the register pursuant to Rule 262.1(b) RoP. The court noted that the Infosoc Directive is explicitly without prejudice to provisions concerning access to public documents and concluded that the interests of copyright holders are duly protected by the procedures available in national courts for copyright infringement.
The court reiterated that when access is requested, the public interest must be balanced against general interests in Article 45 UPCA, including protection of confidential information, personal data, justice and the integrity of proceedings, and that these interests are usually properly balanced if access is given after proceedings have concluded, though members of the public with direct legitimate interests in the subject-matter may obtain access earlier.
The court clarified that "reasoned request" in Rule 262.1(b) RoP means a request that not only states which documents are sought, but also specifies the purpose and explains why access is necessary for that purpose, providing all information necessary for the judge-rapporteur to balance all the interests under Article 45 UPCA. The procedure under Rule 262.1(b) RoP is based on individual assessments of each request, where the nature of the member of the public and the purpose of the request can play a part.
The court stated that the application of Rule 262.1(b) RoP is furthermore safeguarded by the requirement of representation when requesting access to the register. The rationale is to protect parties when it comes to the legal consequences of procedural measures. Furthermore, it ensures the proper conduct of proceedings.
The court held that these controls would be circumvented if the court provided access to a company intending to make documents publicly available to subscribers on its patent litigation intelligence platform. Any subscriber could access the documents. This is not an interest that is protected under Article 45 UPCA.
The court concluded that Docket Navigator's request could not be considered to be made based on an interest protected under Article 45 UPCA. No conditions imposed on it on granting access could remedy this deficiency.

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Decision date:

02 December 2025

Court of Appeal

Windhager v Bellissa (UPC_COA_0000894/2025)

At first instance, Belissa brought an infringement action before the Mannheim LD and Windhager counterclaimed for revocation of Belissa’s patent concerning a bed edging with a lockable sheet-metal strip. The Mannheim LD largely upheld Belissa’s infringement action, but Windhager’s revocation counterclaim was unsuccessful on the merits.
Windhager lodged an appeal against the first instance decision and filed a motion with the Court of Appeal requesting that its appeal be granted suspensive effect because it maintained that the contested first instance decision contained “obvious errors”, particularly relating to the assessment of direct patent infringement and the dismissal of its revocation counterclaim. Windhager also argued that another revocation claim against Belissa’s patent had been brought in the Milan CD by LS 9 GmbH and therefore requested a stay of the appeal proceedings until a decision has been rendered in the new action.
The Court of Appeal explained that pursuant to Rule 223.2 RoP, the request for suspensive effect “must contain (a) the reasons why the appeal should have suspensive effect and (b) the facts, evidence and legal arguments put forward". This means that the request must, on its own, enable the Court of Appeal to make a decision, if necessary, without further information.
An order for suspensive effect may be considered if the decision being appeal is “manifestly erroneous” or the enforcement of the contested decision would render the appeal “largely moot”.
Widhager referred to its grounds of appeal to substantiate its application for suspensive effect. The Court of Appeal noted that whether these are valid would be decided in the main appeal proceedings and that Windhager had not proven that the findings of the Mannheim LD constituted obvious errors or that there was any obvious inaccuracy in the decision. Windhager also claimed that its reputation would be damaged if the first instance decision was enforced by recall, removal from distribution channels and the destruction of the products found to be infringing. The Court of Appeal concluded that Windhager was not able to prove that its interest in preventing these measures outweighed Belissa’s interest in preventing infringement of its patent. Windhager’s application for suspensive effect was rejected.
As the outcome of the new revocation action was at that stage unknown, the Court of Appeal concluded that the fact that it was pending before the Milan CD was irrelevant.

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Decision date:

01 December 2025

Court of Appeal

Innovative Sonic v OPPO & Ors (UPC_CoA_838/2025)

Innovative Sonic had initiated infringement proceedings in the Munich LD against the defendants (referred to collectively as Oppo). Oppo applied for a change of language of the proceedings from German to English, which was granted by the President of the Court of First Instance.
Innovative Sonic appealed the decision of the President and requested that the Court of Appeal set aside the order. Innovative Sonic maintained that drafting foreign language pleadings would generate additional expenditure for both parties as they both have German representatives. It also alleged that the common language of the technology of the patent in suit was irrelevant to the change of language proceedings and the fact that each LD of the Court of First Instance offers English as an additional language should not restrict a claimant’s right to choose the official language it has chosen. It also noted that there were two German speaking judges on the panel of the Munich LD, which it said suggested that the use German would be more efficient.
In making the decision, the President had addressed the issue of fairness by considering all the relevant circumstances relating to the case. For example, the language commonly used in the technology in question, the position of the parties, including their nationality, domicile, respective size, and how they could be affected by the requested change of language, as well as the internal working language of the parties, the possibility of internal coordination and support on technical issues, with a particular focus on the defendant’s position.
The Court of Appeal concluded that the President had rightly exercised her discretion when assessing fairness and granting the request for the change of the language to English (the language in which the patent was granted).
The Court of Appeal consulted the panel in the Munich LD. The presiding judge replied on behalf of the panel noting that English offered all parties the “same ability to understand and express themselves”. As such, the appeal was dismissed.

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Decision date:

28 November 2025

Court of Appeal

Yealink v Barco (APL_19989/2025, APL_16185/2025)

This decision concerned an appeal from the Brussels LD’s order denying Barco's application for provisional measures. The proceedings concern Barco's unitary patent covering methods and systems enabling meeting participants to access functional devices (with associated software). The Brussels LD held that it was competent to hear Barco's application but dismissed it for lack of urgency and ordered Barco to bear reasonable and proportionate legal costs up to the applicable ceiling of €112,000. Both parties appealed.
The Court of Appeal addressed three issues: i) Yealink's preliminary objection to the Brussels LD's competence, ii) the Brussels LD's finding of a lack of urgency, and iii) the €112,000 interim costs award.
On competence, the court confirmed that, while Rule 19.1(b) RoP concerning preliminary objections was not directly applicable to provisional measures proceedings, the Brussels LD correctly treated Yealink's objection as a defence under Rule 209 RoP. The Court of Appeal held that for reasons of efficiency, and in view of the urgency of interim measures applications, Rule 19.5 RoP shall apply mutatis mutandis, meaning referral to a competent division is possible in provisional measures proceedings. If the division seised considers a defence raised on the competence of the local division is well-founded and the applicant for provisional measures indicated another division that is competent, it shall refer the application to that division.
The Court of Appeal emphasised that competence of the divisions of the Court of First Instance is regulated by Article 33 UPCA. It is a UPC internal matter and is not governed by the recast Brussels Regulation. Rejecting Yealink's argument that Article 33(1)(a) UPCA should be interpreted restrictively as a special rule derogating from the general rule in Article 33(1)(b) UPCA, the court observed that the linguistics of Article 33(1) UPCA speak against such an interpretation, noting that the two provisions are separated by "or", making them alternatives. The court held that for the purpose of establishing competence of a local division, there is no hierarchy between competence based on the place where the actual or threatened infringement has occurred or may occur in Article 33(1)(a) UPCA, and competence based on the residence or principal place of business of the defendant in Article 33(1)(b) UPCA.
The establishment of whether a first instance division is competent should not be based on a comprehensive evaluation of the evidence in relation to disputed facts that are relevant both to the question of competence and to the existence of the claim, since such an assessment would improperly anticipate the outcome. Rather, the Cout of Appeal confirmed that the court will only take a cursory look at the parties' allegations and evidence as provided, if any.
Applying these principles, the Court of Appeal noted that Barco's test purchases were carried out in Belgium, with a bailiff documenting the purchasing activities, and that Yealink products were ordered from bechtle.com and delivered to Belgium. The court held that even in the absence of any specific allegation about a connection between the actor that supplied the test product in Belgium and the Yealink companies, what Barco had presented was sufficient to establish competence for the Brussels LD.
On urgency, when weighing the parties interests, the court shall have regard to any unreasonable delay in seeking provisional measures as per Rule 211.4 RoP. The Court of Appeal confirmed that the Brussels LD correctly considered that Barco unreasonably delayed in making its application for provisional measures. The timeline showed that the EPO announced its intention to grant the patent on 6 May 2024, the mention of the patent grant was published on 12 June 2024, Barco filed the request for unitary effect on 2 July 2024, and unitary effect was registered on 23 August 2024. Barco then made its test purchase on 29 August 2024, but it did not lodge its application for provisional measures until 2 October 2024. The Court of Appeal considered that Barco could have made its test purchase on 12 June 2024, or very shortly thereafter, and following technical analysis, the application for provisional measures could have been lodged on 15 July 2024, or a few days later, as had been rightly observed by the Brussels LD.
Barco had sought to argue that "a series of unfortunate circumstances outside of Barco's control" relating to its representatives had resulted in it taking far longer than usual between the request for unitary effect and its registration. The Court of Appeal rejected this, noting that Barco was responsible for the performance of its representatives when applying for unitary protection, and it had the means to verify that the application had been made but did not do so with the necessary urgency.
On the interim costs award, the Court of Appeal held that an interim award of costs may also be ordered in favour of the defendant in proceedings for provisional measures even if it is not expressly provided for in Rule 211.1(d) RoP (as it is in Rule 150.2 RoP for decisions on the merits). For reasons of equality of arms alone, the same rules on interim awards of costs apply in proceedings for interim measures as in the main proceedings. However, the court considered that an interim costs award of up to half of the ceiling was generally more appropriate. An interim award up to the applicable ceiling would effectively make the procedure for a cost decision pursuant to Rule 150 RoP largely redundant.

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Decision date:

27 November 2025

Milan CD

Pari Pharma v Koninklijke Philips (UPC_CFI_613/2024)

Pari Pharma GmbH (Pari) commenced revocation proceedings in the Milan CD against Koninklijke Philips concerning the latter's patent relating to a nebulizer head with improved air-flow guidance. Pari argued that claim 1 lacked novelty over a patent application (D1) and the prior use of the Pari eMotion device. It also asserted lack of inventive step over a combination of multiple prior art documents.
As a preliminary point, the court considered what was required for a claimant to have standing to sue under Article 47(6) UPCA, which provides that proceedings may be brought by a party that is "concerned by a patent". This phrase is not defined in the UPCA, but the court stated it did not require "a specific legal or economic interest in the patent" and, for revocation actions, it at most excluded actions brought by 'strawman' claimants (acknowledging that this is the subject of academic debate).
The court noted that there is no requirement in Rule 44 RoP for a claimant to explain its "concern" in the statement for revocation. It held that any person or entity potentially trying to ascertain their freedom to operate – and therefore any party (potentially) operating in the technical field of the patent – are “concerned” by it and have standing under Article 47(6) UPCA. It commented that standalone revocation actions were especially important for competitors of a patentee who might want to make sure they have freedom to operate in a certain field and therefore act safety with regard to developments and investments.
D1 was a co-pending patent application that constituted prior art under Article 54(3) EPC for the purposes of novelty. It disclosed an aerosol delivery device in which the adaption element could be equipped with a mouthpiece. The court’s analysis turned on several contested features, particularly its construction of the bidirectional air-flow path and backside opening. The Milan CD stated that the skilled person will generally not directly and unambiguously deduce dimensions from schematic figures. However, a relatively simple orientation (versus a specific dimension) may be deduced from a figure.
The Milan CD concluded that claim 1 as granted lacked novelty over D1 as the subject matter was directly and unambiguously disclosed in the prior art document. In light of this, the court noted that it was not decisive whether claim 1 also lacked novelty over the Pari eMotion device.
The court rejected the defendant's first auxiliary request as inadmissible. Rather than lodging specific claims, the defendant had requested that, if the court did not uphold the patent as granted, it should maintain all claims that it believed to be valid, while revoking only the claims it believed to be invalid. The court emphasised that under Article 76.1 UPCA, it is the patentee’s responsibility to lodge amended claims stating the exact wording in which a patent shall be upheld. This was also reflected in the requirements of Rules 30.1 and 50.1 RoP. The first auxiliary request was therefore held to be inadmissible because it left the amendment to the court’s discretion. The court did, however, permit the defendant's second auxiliary request, finding the limited claim was novel and inventive over the prior art.
The court ordered that the parties bear their own costs as they were "equally successful and unsuccessful". The claimant was successful on the main attack because the patent was upheld only in an amended version, but it was not entirely invalidated.

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Decision date:

27 November 2025

Court of Appeal

Chainzone (intervener) & Strabag v Swarco (PC-CoA-001/2025, (UPC_CoA_70/2025))

At first instance, Swarco sued Strabag in the Vienna LD for infringement of its patent concerning imaging display boards. Chainzone had applied and was granted leave to intervene on behalf of Strabag. The Vienna LD upheld the infringement action in its entirety. Both Strabag and Chainzone appealed. The oral hearing had been scheduled for 4 December 2025. On 20 November 2025, Strabag announced that it was withdrawing its appeal pursuant to a settlement agreement with Swarco. Swarco agreed to the withdrawal of the appeal. Chainzone had not been involved in the settlement but agreed to the withdrawal of Strabag's appeal provided that its own appeal would be heard and decided; it would not agree to the withdrawal if not.
The Court of Appeal held that Strabag's withdrawal of its appeal was admitted in accordance with Rule 265.1 RoP. Under that rule, a claimant may request the withdrawal of its action provided that no final decision in the action has been issued. This applies equally to withdrawals of appeals. However, Rule 265.1 notes that a withdrawal is not permitted if the other party has a legitimate interest in the court ruling on the action. In this case, Swarco agreed to the withdrawal and it was only the interest of Swarco, and not Chainzone as intervener, that was decisive.
Rule 315.4 RoP provides that an intervener is treated as a party in the proceedings unless the court orders otherwise. Rule 313.2 RoP requires that an application to intervene be made in full or partial support of a claim sought by one of the parties. The Court of Appeal concluded that because interveners may only support the claims of a party, they cannot contradict the actions and statements of the party they support. This rendered Chainzone's objection to Strabag's withdrawal inadmissible.
The court held that procedural actions by an intervener are only admissible insofar as they serve to support the applications made by one of the parties. This means that the intervener has no position independent of the party it supports. If both the party and the intervener supporting it have lodged appeals, this constitutes a single appeal, which the intervener cannot continue if it is withdrawn by the supported party. In such circumstances, the intervener's appeal becomes moot in accordance with Rule 360 RoP.
Chainzone raised concerns about the binding effect of the first instance decision. The operative part of the contested decision named Chainzone as the manufacturer of the contested embodiments and established patent infringement. Chainzone argued that this finding would become final if its appeal was not decided, excluding it from raising objections to the finding of patent infringement. Chainzone also noted that it was directly affected by the costs order, as both Chainzone and Strabag were obliged to reimburse Swarco for certain costs of the dispute.
The Court of Appeal addressed these concerns through its interpretation of Rule 316.3 RoP, which provides that an intervener is bound by the decision in the action. The Court of Appeal held that if an intervener is prevented by the withdrawal of the main party's appeal from bringing about a review of the first instance decision in terms of fact and law, it may invoke this in any subsequent proceedings against both parties. Applying the principles of proportionality, flexibility, fairness and equity from the preamble to the RoP, the Court of Appeal concluded that the binding effect of decisions against interveners pursuant to Rule 316.3 RoP can only apply insofar as the intervener is not restricted in its conduct of the proceedings.
Accordingly, the court confirmed that Chainzone could argue in subsequent proceedings (including border seizure proceedings) that the binding effect does not apply because the appeal would have been successful on the grounds asserted by it in the appeal proceedings, including with respect to the finding that Chainzone was the manufacturer and that the contested embodiments infringed the patent.
The Court of Appeal also addressed the costs aspect of the first instance decision. If it transpires in subsequent proceedings that Chainzone's grounds for appeal would have been successful, Chainzone would be entitled, on the basis of an application analogous to Rule 354.2 RoP, to demand reasonable compensation from Swarco for the damage caused by the enforcement.
Applying the principle that an intervener is to be treated in the same way as the main party it supports with regard to costs, and noting that Strabag had placed itself in the position of the unsuccessful party by withdrawing its appeal, the court ordered Chainzone to bear its own costs. Swarco and Strabag had agreed to bear their own costs of their legal representation and the court costs incurred in the appeal proceedings themselves.

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Decision date:

25 November 2025

Court of Appeal

Meril & Ors v Edwards Lifesciences (UPC_CoA_464/2024, UPC_CoA_457/2024, UPC_CoA_458/2024, UPC_CoA_530/2024, UPC_CoA_532/2024, UPC_CoA_533/2024, UPC_CoA_21/2025 and UPC_CoA_27/2025)

This decision concerned appeals and cross-appeals brought by various Meril companies and Edwards Lifesciences against a number of decisions of the Paris CD and the Munich LD. The dispute related to the validity of Edwards' patent relating to a system comprising a prosthetic heart valve and a delivery catheter and its alleged infringement by Meril's "Myval Octacor" valve and its “Navigator” and “Navigator Inception” delivery systems.
In summary, the Court of Appeal upheld the Paris CD's finding that the patent was valid in amended form. It also endorsed the Munich LD's finding of infringement, but amended the scope of the injunction.
Edwards brought an infringement action against Meril India and Meril Germany before the Munich LD on 1 June 2023. Meril Italy subsequently brought a direct revocation action against Edwards before the Paris CD on 4 August 2023. The revocation action and revocation counterclaims were later consolidated at the Paris CD, which upheld the patent in amended form (auxiliary request II) on 19 July 2024. Both parties appealed this decision. On 15 November 2024, the Munich LD found infringement and ordered Meril India and Meril Germany to cease and desist from infringing acts across sixteen Member States, with a carve out for certain products (discussed below). Both parties appealed certain aspects of this decision.
The most important aspect of the Court of Appeal's decision was inventive step. The approach taken was closely aligned with the Court of Appeal's other panel's decision in Amgen v Sanofi & Regeneron, which was handed down on the same day. Even though the judgments do not expressly cross-refer, a number of paragraphs are identical.
The Court of Appeal acknowledged that national courts of various EPC countries have different approaches to inventive step, with some applying the problem-solution approach used by the EPO, while others use more "holistic" approaches. Despite these differences, the court emphasised that they are all merely guidelines that, when properly applied, should and generally do lead to the same conclusion.
Adopting the same test as the panel in Amgen, the court endorsed the holistic approach. As explained in more detail in our summary of the Amgen decision, the first step is to establish the objective problem and the second step is to identify a realistic starting point in the state of the art in the relevant field of technology. Having done so, the court will then consider whether the skilled person at the effective date would (and not only “could”) have arrived at the claimed solution. A claimed solution must be considered obvious when the person skilled in the art would take the next step, prompted by the pointer or as a matter of routine, and arrive at the claimed invention. The burden of presentation and proof lies with the party invoking invalidity of the patent.
The panel in Meril also stated that it is not necessary to show improvement of the technical teaching as defined by the patent claims over the prior art. It noted that an inventive step may be found if the patent claims disclose a non-obvious alternative to solutions known in the prior art.
Applying this framework to the prior art citation Levi, the Court of Appeal held that there was no incentive to change the valve frame disclosed in Levi into a frame made up entirely of hexagonal shaped cells as required by the patent.
The Court of Appeal also considered Meril's argument that the amended claim was obvious over Levi in combination with prior art on vascular stents. It held that while the skilled person would be aware of prior art in related fields (such as stents), they would bear in mind that different devices have very different requirements. It agreed with the Paris CD that the skilled person would need a strong motivation to replace a feature taught by Levi in relation to heart valves with one disclosed for another device in another field. In this instance, the Court of Appeal held that there was no such motivation.
The court dismissed Meril's other obviousness arguments for similar reasons. It also rejected Meril’s added matter and novelty objections, finding the patent valid on the basis of auxiliary request II. In addition, it rejected Edwards' appeal against the Paris CD's conclusion that the main request and auxiliary request I were invalid for added matter.
The Court of Appeal confirmed the infringement finding of the Munich LD and provided important guidance on proportionality considerations for the grant of an injunction in the medical device context. The court stated that Article 64 UPCA and the Enforcement Directive grant patent proprietors a high level of protection such that the recall, removal from distribution channels and destruction of infringing products should be considered the norm. Only if measures are disproportionate can they be refused. It noted that this might be the case if, for example, the infringement was minor or the infringer was willing and able to eliminate the infringing nature of its product.
When considering proportionality of injunctive relief and corrective measures, the interests of third parties, such as patients, as well as of the parties, may be taken into account. The court endorsed the Munich LD's finding that patient interests justify an exception to the right to injunctive relief and corrective measures if it is established that the infringing embodiment is the sole available treatment method or represents an improvement upon available treatment methods, resulting in a notable enhancement of patient care.
The Court of Appeal agreed with the Munich LD that there was a legitimate interest in excluding Meril's XL devices from the injunction as there was no equivalent product to treat this patient group. However, it agreed with Meril's argument that permission to use Meril's XL products should not depend on an assessment undertaken by Edwards doctors that a patient had no other treatment options. It considered that a notification of an intention to use Meril’s XL device by a physician confirming that it was the only available treatment option was sufficient. The Court of Appeal therefore amended the injunction and orders for corrective measures accordingly.
The court rejected a number of procedural appeals. These included Edwards' appeal against the Paris CD's ruling that it was competent to hear the direct revocation action brought by Meril Italy despite the pending infringement case against Meril India and Meril Germany in the Munich LD, Edwards' appeal against the Munich LD's refusal to extend the injunction to Romania and Meril's appeal against a decision permitting Edwards to amend the patent.

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Decision date:

25 November 2025

Court of Appeal

Amgen v Sanofi and others (UPC_CoA_528/2024, UPC_CoA_529/2024)

This decision concerned an appeal brought by Amgen relating to a first instance decision by the Munich CD, which found Amgen's patent covering PCSK9 (proprotein convertase subtilisin kexin type 9) inhibitor antibodies invalid for lack of inventive step.
The Court of Appeal overturned the Munich CD's decision, instead finding Amgen's patent valid
Amgen and Sanofi/Regeneron both market cholesterol-lowering PCSK9 inhibitor antibody drugs, which are sold under the trade names Repatha® and Praluent®, respectively. This decision forms part of a wider dispute between the parties concerning PCSK9 inhibitors that has been ongoing for the past decade.
Amgen's patent claims a monoclonal antibody or antigen-binding fragment for use in treating or preventing hypercholesterolaemia or atherosclerotic disease related to elevated serum cholesterol levels, or for reducing the risk of recurrent cardiovascular events, wherein the antibody binds to the catalytic domain of PCSK9 and prevents or reduces PCSK9 binding to the low density lipoprotein receptor (LDLR).
The Court of Appeal held that when claims are drafted in a "medical use-format", it is an inherent feature that the claimed product must be “therapeutically effective” in a meaningful way. This requires the claimed treatment to cause a "noticeable improvement of the medical condition of the patient suffering from the disease mentioned in the claim".
The inventive step analysis formed the heart of this appeal. The Court of Appeal set out comprehensive principles for assessing inventive step at the UPC, aligning with the Court of Appeal's decision in Meril v Edwards that was handed down on the same day as this decision.
Under the holistic approach endorsed by the UPC, the first step is to establish the objective problem from the perspective of the skilled person by determining what the invention adds to the state of the art. This assessment should be made in view of the claim(s) as a whole, in light of the description and the inventive concept. In order to avoid hindsight, the objective problem should not contain pointers to the claimed solution.
The second step is to identify a realistic starting point in the state of the art in the relevant field of technology. The court reaffirmed that a starting point will be realistic if its teaching would have been of interest to a skilled person who, at the relevant date, wished to solve the objective problem. There can be more than one realistic starting point, but the claimed invention must be inventive starting from each of them.
Having identified the objective problem, the court will then consider whether the claimed solution is obvious by assessing whether the skilled person would (and not only "could") have arrived at the claimed solution. In the context of a medical use claims, the claimed solution is obvious if the skilled person would have taken the next step in expectation of finding the envisaged solution. This is generally the case when results were clearly predictable or where there was a reasonable expectation of success. The burden of proof lies with the party alleging invalidity of the patent.
A reasonable expectation of success implies the ability of the skilled person to predict rationally, on the basis of scientific appraisal of the known facts before a research project was started, the successful conclusion of that project within acceptable time limits. Furthermore, the assessment should take into account any practical or technical difficulties as well as the costs involved in testing whether the desired result would be obtained and whether these considerations may have stopped the skilled person from taking that step. On the other hand, the stronger the pointer towards the claimed solution, the lower the threshold for a reasonable expectation of success. Moreover, the fact that other people or teams were working contemporaneously on the same project does not necessarily imply that there was a reasonable expectation of success. It may indicate that it was an interesting are to explore with a "mere hope to succeed".
Much of the inventive step analysis centred around Lagace, a prior art citation describing experiments investigating the effects of extracellular PCSK9 on cultured liver cells and fibroblast cells. Lagace also described a parabiosis experiment in which the circulatory system of a genetically engineered mouse overexpressing PCSK9 was connected to the circulatory system of a normal mouse, demonstrating that extracellular PCSK9 from the genetically engineered mouse caused removal of LDLR in the normal mouse and increased cholesterol levels in vivo.
However, this experiment was carried out with PCSK9 at supraphysiological levels. The court concluded that at the priority date the skilled person, starting from Lagace, had a strong incentive to block PCSK9 activity to reduce LDL levels in order to treat hypercholesterolaemia and similar diseases, and that Lagace taught the skilled person that an extracellular pathway of PCSK9 exists.
Crucially, although Lagace had provided evidence that extracellular PCSK9 could reduce LDLR levels in cultured cells, it also pointed out that the relative contribution of PCSK9's intracellular and extracellular pathways was uncertain under normal and pathological conditions. At the priority date, PCSK9 was considered to function by both intracellular and extracellular pathways, and so the skilled person needed to know whether the extracellular pathway's contribution would be sufficient to result in therapeutically effective treatment. The court found this uncertainty critical. Other publications raised doubts as to whether relevant PCSK9-LDLR binding could occur extracellularly under physiological conditions. For example, Cunningham and Fisher separately reported that PCSK9's binding affinity for LDLR was much higher at acidic pH (inside cells) than neutral pH (in plasma), with LDL particles further reducing binding affinity.
It was not until April 2009, after the priority date, that another citation provided "initial evidence that PCSK9 functions predominantly as a secreted factor". The Court of Appeal held that suggestions in Lagace about antibodies as potential therapeutic approaches would be understood by the skilled person as conditional upon resolving the existing uncertainties about whether the extracellular pathway was sufficiently relevant for an antibody approach to succeed.
At the priority date, scientific research in the field of PCSK9's mechanism of action had not reached the stage where the skilled person could reasonably predict that an antibody blocking PCSK9-LDLR interaction would be therapeutically effective. Accordingly, the skilled person could not reasonably predict whether the antibody route would lead to therapeutically effective treatment, preventing a reasonable expectation of success.
Sanofi/Regeneron were also unable to overturn the Munich CD's findings on sufficiency. They argued that the patent did not disclose the invention sufficiently clearly and completely because the skilled person would be unable to obtain antibodies binding to the catalytic domain without undue burden. Since the catalytic domain cannot be expressed and secreted in isolation, Sanofi/Regeneron contended that the skilled person would need to perform X-ray crystallography to determine whether an antibody bound the catalytic domain, representing an undue burden.
However, the Court of Appeal found that the patent disclosed several methods to identify whether an antibody binds to the catalytic domain, including X-ray crystallography, domain binding assay, scanning mutagenesis and competition assay, with further methods also known at the priority date. The mere fact that a method (in this case X-ray crystallography) is laborious, time-consuming and challenging does not automatically mean that it constitutes an undue burden, especially when it is the generally accepted standard for obtaining the most accurate results. Moreover, a reasonable amount of trial and error does not prevent an invention from being enabled.
The Court of Appeal also emphasised that it is not required that each and every conceivable embodiment within functional definition(s) of the claim are enabled. Sanofi/Regeneron had not shown that the skilled person would be unable to obtain further antibodies with the claimed functional properties in a reliable manner with reasonable trial and error and without undue burden.
The Court of Appeal also rejected Sanofi/Regeneron's added matter arguments, finding clear pointers throughout the application. It noted that literal support is not necessary and that it is sufficient if the skilled person can derive the subject matter from the application as a whole. The court concluded that the preferred features taken together, as well as various links between features in the application, meant that the combination of claimed features was clearly and unambiguously derivable from the application.
The first instance decision was set aside and Sanofi/Regeneron were ordered to pay Amgen's agreed costs of €1,375,000 for each first instance proceeding (the revocation proceedings and counterclaim for revocation). As there was no agreement on the costs of the appeal, the Court of Appeal ordered Sanofi/Regeneron to bear Amgen's costs of the appeal.

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Decision date:

24 November 2025

Court of Appeal

Suinno Mobile v Microsoft (UPC_CoA_000911/2025)

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Decision date:

19 November 2025

Düsseldorf LD

Bekaert v Siltronic & Anor (UPC_CFI_539/2024)

Bekaert is a Chinese company and is the sole proprietor of the patent relating to saw wires in force in Germany, Austria and Italy. Bekaert filed an application for an order to inspect the premises of and preserve evidence relating to the two respondents, Siltronic (a German based manufacturer and distributor of silicon wafers for the semiconductor industry that purchases saw wires from Bekaert and another Chinese company) and Hinterberger (a German based logistics company that provides storage space to Siltronic for the saw wires it uses).
The Düsseldorf LD granted an order to inspect the premises of the respondents and to preserve evidence in advance of the main action. However, this order also provided for the protection of the respondents' confidential information, including their trade secrets. Following the inspection, the expert report was submitted on 11 February 2025.
The respondents requested that the court declare certain information in the expert report inadmissible, for example, all information relating to the dependent claims in Bekaert's patent, the prices charged or paid for saw wires and the quantity ordered, and information about properties of the saw wires. Alternatively, the respondents requested that the court restrict access to that information to a small number of Bekaert's representatives. The respondents based their application on Article 58 UPCA, which concerns the protection of trade secrets, personal data or other confidential information of a party or third party.
The Düsseldorf LD interpreted Article 58 UPCA to mean that it had discretion whether to order that the information was inadmissible at this stage of the proceedings, for example by redacting certain portions of the expert's report.
In deciding whether to exercise its discretion, the court had to first consider whether the information constituted a trade secret, contained personal data or contained other confidential information. If this was the case, the information would have to be redacted if it was irrelevant to the question of infringement or possible acts of use within the meaning of Article 25 UPCA, because it would not be related to the case at all. However, if the information related to the question of infringement and/or scope of acts of use, the court would have to make a decision in each individual case whether to disclose the information to the applicant, who would be obliged to maintain confidentiality with respect to third parties, and whether the information should only be disclosed to a limited number of persons.
In this case, the Düsseldorf LD decided that the prices paid for the saw wires and the volume purchased constituted the respondents' trade secrets. The products were not publicly traded and therefore not known to direct competitors. The respondents had taken steps to protect this information – the information was kept in an IT system that was only accessibly by a limited number of people. There was also a confidentiality agreement between the respondents that protected the information. In any event, the information was deemed not relevant to the question of infringement and therefore the court ordered that it be redacted.
Customers' bank details were held to be confidential information, but irrelevant to the question of infringement. Thus, the court ordered for that information to be redacted. Other information in the expert's report, such as details about the products and the expert's opinion on the dependent claims, was not deemed to be confidential and therefore was ordered to be disclosed.
As per Article 60(8) UPCA and Rule 198(1) and 199(2) RoP, Bekaert had no more than 31 calendar days or 20 working days (whichever was longer) after the expert's opinion had been disclosed to bring an action on the merits, otherwise the inspection and evidence preservation order would be revoked or cease to have effect.

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Decision date:

18 November 2025

The Hague LD

Advanced Cell Diagnostics v Molecular Instruments (UPC_CFI_187/2024 and UPC_CFI_507/2024)

This decision related to a claim for infringement of two patents relating to a method for detecting and quantifying single molecules of RNA using in situ hybridisation and a counterclaim for their revocation.
The claimant patent proprietor, Advanced Cell Diagnostics, develops assays for nucleic acid molecules, including so-called 'RNAscope' technology. The defendant, Molecular Instruments, is a biotech startup developing technology for detecting DNA, RNA and proteins, including HCR RNA fluorescence in situ hybridisation.
The Hague LD noted that there had been earlier parallel proceedings between the parties in the UK, in which the English High Court had found the UK designations of the patents invalid for obviousness over a combination of prior art (Collins with Kern) that was also cited in the UPC action, but that, if valid, one of the patents would have been infringed. The Hague LD reached the opposite conclusions, finding both patents valid, but not infringed either literally or by equivalence.
In relation to the interpretation of certain claim features, the Hague LD referred to the principles set out by the Court of Appeal in Nanostring v 10 Genomics. In particular, the claimant argued that a feature relating to "non-overlapping" regions of the label probe should be interpreted 'functionally', rather than requiring no overlap at all. The court noted that, in parallel proceedings in the UK, the English High Court had adopted such a functional interpretation, but concluded that the term should be interpreted literally.
The defendant alleged that the patent was invalid for lack of novelty, lack of inventive step, added matter and insufficiency. The court noted that the defendant had cited numerous prior art documents, but stated it would only discuss those presented as the most promising.
For novelty, the court applied the so-called ‘gold standard’. It noted that it is not possible to combine different passages or embodiments of a prior art document unless the skilled person would derive that combination directly and unambiguously. It also stated that it is impermissible to combine separate items of prior art unless there is a specific cross-reference to enable the skilled person to construe them as a single disclosure, such as where a second document is referred to for a specific method of preparation of a component described in the first. Applying these standards, the court rejected the novelty attacks.
For inventive step, the court noted that the parties had "in theory" agreed that the principles set out by the Munich CD in Sanofi v Amgen should apply, and quoted its statement that “In general, a claimed solution is obvious if, starting from the prior art, the skilled person would be motivated (i.e. have an incentive […]) to consider the claimed solution and to implement it as a next step […] in developing the prior art.” The court noted, however, that in practice the parties appeared to have used the problem-solution approach. Nevertheless, it stated that the result did not depend on the specific test and that it would "apply principles that are common to both tools" in its assessment. The court concluded that the patents were not obvious over any of the prior art citations or combinations.
Two of the prior art citations (Collins and Urdea) disclosed a particular design of probe (a "cruciform" design) in an in vitro context, but were published nine years before the priority date. The court noted that there was no evidence on file that such a design had been used or suggested in the context of in situ assays, as in the patent, in the meantime. It commented that a time lapse of nine years did not necessarily lead to a conclusion of inventive step. However, given that the field of in situ assays was highly competitive, the time lapse did illustrate that cruciform probe designs were not considered in the in situ context.
The defendant's insufficiency squeeze did not arise as it was not part of the reasoning on inventive step that the prior art was not enabled or created a prejudice. The defendant had also failed to substantiate its allegation of insufficiency. The attack was therefore rejected.
The court noted that the test for added matter was the same 'gold standard' as for novelty. It rejected the defendant's added matter attacks on the independent claims. The defendant had failed to respond in its reply to defence to counterclaim to the claimant's rebuttals of its added matter attacks in relation to the dependent claims. Accordingly, the court considered that those attacks were "if not forfeited, then in any case, convincingly rebutted by the Claimant".
On infringement, the court referred to an undisputed product and process description (PPD) for the defendant's products that had been agreed by the parties in the UK proceedings. However, unlike the English High Court, the Hague LD held that the product did not infringe.
There was no literal infringement in light of the Hague LD's conclusion that the claim feature relating to "non-overlapping" regions required that there was no overlap at all. Depending on the version, the defendant's products had an overlap of 1, 2, 3 or 4 nucleotides.
The defendant objected to the claimant's equivalence arguments as late filed. The arguments had been raised only in the reply to the defence, even though equivalence had been introduced in the UK proceedings over 18 months before the claimant's statement of claim. The defendant also argued that it would be prejudiced by the late admission of the arguments, as it would only have one written round to respond. The court rejected these submissions. It held that adding an equivalence argument was not an amendment of a case for which judicial leave is required under Rule 263 RoP. Moreover, the equivalence arguments were in response to the arguments in the statement of defence and in line with the claimant's arguments on literal infringement. The defendant was not unreasonably prejudiced, as it had the opportunity to respond in its written rejoinder and orally at the hearing. It could also rely on the debate on equivalence in the UK. The court noted that it would have been "prudent" for the claimant to have included equivalence in the statement of claim, but declined to strike out the arguments.
The court went on to reject infringement by equivalence with regard to the "non-overlapping" claim feature. Firstly, considering legal certainty, it was "difficult if not impossible" to construe how much overlap would remain equivalent. Secondly, while the patents were valid, it was "clear that they do not form a very significant step" in the development of in situ assays, as all the features were known, just not in combination. Thus, the fair protection of the patentee did not require a finding of equivalence. Thirdly, the defendant's products' overlap of 1 to 4 nucleotides had a specific technical reason that arguably led to an improvement to the invention that was not envisaged by the patents.

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Decision date:

12 November 2025

Brussels LD

Genentech & F. Hoffmann-La Roche v Organon Heist & Ors (UPC_CFI_407/2025, UPC_CFI_408/2025)

This decision concerned an application for review of an ex parte order for inspection and preservation of evidence. The request for the inspection and preservation of evidence was brought by Genentech and Roche against the defendants in relation to the alleged imminent infringement of Genentech's patent concerning an HER2 antibody composition by the upcoming launch by Organon of a pertuzumab biosimilar.
The court had dismissed the applications in relation the first defendant (Organon US, a US pharmaceutical company and parent company to Organon BE and Organon NL, the second and third defendants respectively) and the fourth defendant (Henlius, a Chinese biopharmaceutical company focused on biosimilars). No appeal was introduced regarding this dismissal. However, the applications were ordered with respect to Organon BE and Organon NL (collectively referred to as Organon).
In its application for review, Organon requested that the court's order be set aside entirely and any documents returned to it and copies destroyed or, alternatively, that the order be modified such that the bailiff be ordered to immediately return or destroy all copies obtained illegitimately or those deemed irrelevant by the court in establishing the alleged imminent infringement. Organon also requested that the costs of responding to Genentech and Roche's application be borne by Genentech and Roche.
The Brussels LD laid out some general guidelines on the assessment of applications to preserve evidence or for inspection of premises. The general purpose of an evidence preservation/inspection application is to enable to the applicant to access additional information that is not publicly available in order to prove infringement, provided "reasonably available evidence" has been provided to support its claim. If granted, and based on the preserved/gathered evidence, the applicant should be enabled to evaluate the "reliable prospects of success" in bringing infringement proceedings.
In the orders, the court had detailed four steps to be taken in the assessment of an application to preserve evidence/for inspection. First, the court considered whether or not to hear the defendants, with the court having the discretion set out in Rule 194.1 RoP . When exercising this discretion, the court shall consider the elements in Rule 194.2 RoP – a) the urgency of the action, b) whether the reasons for not hearing the defendant are well-founded, c) the probability that evidence may be destroyed or become unavailable. Applying this rule requires the court to undertake a balancing assessment, weighing these elements separately, meaning that no one element should be considered absolute. When an applicant requests measures without the defendant being heard, the court should not be misled by the applicant (Rule 192.3).
The second step was the court's substantive assessment of whether to grant the requested measures. The requirements regarding an order to preserve evidence are set out in Article 60(1) and (3) UPCA . The court had to assess whether the patent had been infringed or was about to be infringed. In the order, the court was clear that the standard is "a certain degree of plausibility of the patent being infringed or about to be infringed" and that this standard of proof is lower than that required for infringement actions (on the merits) and preliminary measures actions. The burden of proof lies with the applicant – in this case Genentech and Roche. There was disagreement between the parties on the interpretation of "about to be". Organon argued that it should be read as "imminent" and therefore closely related to the urgency assessment in Rule 194.2 RoP. As such, it said that the orders were "premature". The court disagreed with this interpretation, noting that there must be a risk of infringement and it must be apparent that it will occur in the future. The specific facts of the case will determine the duration of the period.
The third step, if the order is granted, was the court assessing whether the actual requests covered the purpose for which the application was made. This also involved balancing the rights of the parties. Organon argued that the earlier assessment by the court was flawed.
In the fourth step, additional conditions relating to the execution of the order may be ordered by the court based on the circumstances of the case. Organon did not question any of the additional conditions set by the court, except for its argument based on "procedural impropriety".
The Brussels LD carried out a review of these four steps undertaken by the court in coming to grant the orders.
Firstly, in not hearing the defendant, Organon argued that the court was misled by Genentech and Roche regarding the urgency element and the probability that the evidence may be destroyed or cease to be available. Upon review, the court held that Genentech and Roche had disclosed all material facts known to them when applying for the orders. Moreover, it stated that the timeline for Organon's biosimilar launch put forward by Genentech and Roche was accurate and created urgency in the sense of Rule 194.2(a) RoP.
Likewise, on review the court found that the standard for probability that evidence may be destroyed or cease to exist had been met by Genentech and Roche. The court held that the threshold for assessing the probability of evidence ceasing to be available is not the intention of the entity, but the probability of a demonstrable risk of evidence being destroyed or ceasing to be available. It was found that there was a probable risk that the materials would be moved from the Belgium and Netherlands locations to elsewhere, meaning that the materials would cease to be available. Thus, the court was said to have rightfully decided the issue on an ex parte basis.
Secondly, the Brussels LD stated that its review of the court's substantive assessment of the applications was limited to the wording "about to be infringed". Applying the standard of "a certain degree of plausibility", the court found that Genentech and Roche had sufficiently proven that its patent was about to be infringed. The court specifically referred to Organons's application for a marketing authorisation. Although a marketing authorisation application might not constitute a threat of infringement in a provisional measures application, it was sufficient to prove with a certain degree of plausibility that the patent was about to be infringed for the purposes of this application.
In reviewing the third step (assessment of the scope of the orders), the court held that the granted orders were justified, "rightly balanced" to prevent misuse of the legal tool as a "fishing expedition" and were not overly broad, as Organon had argued.
Finally, the court reviewed the additional conditions imposed in the orders. The order had permitted Organon to contact its legal representative and/or technical representative to participate in the execution of the order but that could not delay execution. The Brussels LD noted that the presence of a legal or technical representative is not a prerequisite for executing the order and securing their presence should not be used to delay the carrying out of the order in any way. As such, Organon's request to alter these additional conditions was rejected.
Overall, the court dismissed Organon's application for review and confirmed the orders for inspection and preservation of evidence.
The court provided important guidance on the scope of review proceedings under Rule 197.3 RoP, establishing a double assessment framework. First, whether the court rightly decided to issue the ex parte order; and second, whether the order should be confirmed, modified or revoked based on all facts and evidence presented by both parties. For both assessments, the court should place itself on the date of issuance of the order to preserve evidence/for inspection.
The court held that the scope of review proceedings does not pertain to the execution of the order, the outcome of such execution, or any information gathered during execution. Such requests must be assessed in separate proceedings and/or as part of the defence in provisional measures or proceedings on the merits.
The court further detailed practical steps to be taken by the experts gathering and preserving the evidence. The court held that the appointed experts' task is to filter (evaluate) the gathered/preserved information and use only such information that they deem necessary as possible evidence to prove or disprove the actual infringement of the patent.
The court indicated that a decision on the costs would be assessed either in infringement proceedings (if brought by Genentech and Roche) or in a separate application.

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Decision date:

11 November 2025

Düsseldorf LD

Hewlett-Packard Development Company v Andreas Rentmeister & Anor (UPC_CFI_515/2025)

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Decision date:

07 November 2025

Court of Appeal

OTEC v Steros (UPC_CoA_579/2025)

Steros is the exclusive licensee of a patent relating to an electrolytic medium and electropolishing process using the electrolytic medium. OTEC manufactures and sells electropolishing machines and electrolytic mediums for them in some UPC contracting states, including Germany. In June 2025, Steros obtained a preliminary injunction in the Hamburg LD against OTEC.
OTEC appealed this decision and requested that the order be set aside, the injunction lifted and for Steros to bear the costs of the proceedings. OTEC had previously requested suspensive effect for the appeal under Rule 223 RoP, which had been rejected.
The appeal turned on the interpretation of one claim feature, which related to the presence of non-conductive fluid. OTEC argued that the attacked embodiment contained one same electrolyte liquid inside and outside the particles that is a conductive oil-in-water-type emulsion with a water-type continuous phase and oily micelles. It maintained that the conductivity of the liquid should be assessed by measuring the emulsion as a whole, which shows that there is no non-conductive fluid according to claim 1 of the patent, and not, as Hamburg LD did, by separating the ingredients of the emulsion and assessing the conductivity of both phases separately to identify the presence of a non-conductive fluid.
The court confirmed the principles on claim construction. The patent claim is not only the starting point but the decisive basis for determining the protective scope of a European patent under Article 69 EPC in conjunction with the Protocol on the Interpretation of Article 69 EPC. The interpretation of a patent claim does not depend solely on the strict, literal meaning of the wording used. Rather, citing Nanostring v 10x Genomics, the description and the drawings must always be used as explanatory aids for the interpretation of the patent claim and not only to resolve any ambiguities in the patent claim.
The Court of Appeal agreed with OTEC – when considering an emulsion as the non-conductive fluid under the claim, the electrical conductivity of the overall emulsion was to be assessed, not that of each ingredient in the emulsion as the Hamburg LD had done.
Steros had sought to demonstrate that the skilled person, on the basis of a table in the patent specification and their common general knowledge, would understand that the table presented an embodiment of a non-conductive fluid within the meaning of the relevant claim feature having an electrical conductivity above a certain level. Steros relied primarily on the results of experiments it conducted for the purposes of the present litigation and the Court of Appeal rejected this, clarifying that experimental data that are not disclosed in the patent specification are, as a general rule, not relevant to the interpretation of the patent claims.
OTEC's appeal was successful. Based on the Court of Appeal's interpretation of the claim, it found that it was more likely than not that that the patent was not infringed. As such, it did not need to consider validity.
The first instance order was set aside, Steros' application for provisional measures was rejected and therefore the preliminary injunction was lifted and Steros was ordered to bear the costs of the first instance and appeal proceedings.

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Decision date:

05 November 2025

Hamburg LD

Dolle v Fakro & Ors (UPC_CFI_461/2024)

This decision concerned an infringement claim brought by Dolle against four Fakro group companies (including the alleged parent company based in Poland, a non-UPC state) in the Hamburg LD. The claim related to the German, Austrian, Danish and Swedish parts of Dolle's patent concerning a foldable attic staircase. Fakro counterclaimed for revocation, arguing that the patent was not infringed and it was invalid for added matter, lack of enablement, lack of right to priority, lack of novelty and lack of inventive step. Dolle also filed various auxiliary requests for amendment of the patent.
The court considered claim construction in relation claim 1 as granted. First, it set out a number of relevant legal principles. According to Article 69 EPC and Article 1 of the Protocol on its interpretation, the patent claim is the decisive basis for determining the scope of protection of a European patent. Citing previous UPC case law, the Hamburg LD noted that the precise wording of the claim is not the only factor of importance – the description and drawings must always be consulted as aides to interpreting the patent claim. However, that does not mean that the claim serves merely as a guideline. Patent claims and the description explaining them, as well as drawings, must be interpreted as "a meaningful whole".
Where a claim is comprised of multiple features, the skilled person will deduce the technical function assigned to a feature individually but considering the feature in the context of the entire patent claim. A patent specification may define terms independently and a patent may have its own lexicon. Therefore, by refence to the specification, the skilled person may attribute a meaning to a term that differs from general usage. Lastly, the court stated that the meaning of a sub-claim can, in principle, contribute to the correct interpretation of the main claim. However, examples of implementation of the main claim in a sub-claim, do not, in principle, limit a more extensive main claim.
In light of these principles, the court construed various features of the claim, concluding that the revocation counterclaim was unsuccessful and that the patent was valid in its registered form.
On added matter, the Hamburg LD cited the Court of Appeal's decision in expert v Seoul Viosys, finding that there was no inadmissible extension of claim 1. The subject matter of claim 1 did not go beyond the content of the originally filed application.
Fakro's lack of enablement argument was dismissed swiftly. On the court's claim construction, the invention was clearly and completely disclosed.
The Hamburg LD also held that Farko's ineffective priority claim failed. The court held that the term "the same invention" in Article 87 EPC should 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 their common general knowledge. This standard corresponds to the disclosure standard for added matter as set out by the Court of Appeal in Abbott v Sibio, whereby implicitly disclosed subject matter that is clearly and unambiguously derived from what is expressly stated is also regarded. Applying this approach, the court held that the patent validly claimed priority. The skilled person could "immediately and unambiguously" derive certain features of the claim from the priority document, even if the features were not explicitly stated.
As for novelty, Fakro had claimed the patent was not novel over the priority document. However, as the court found that the patent effectively claimed priority, the priority document was not prior art. Novelty was also contested in relation to two further patent applications; however, these had the same priority date as the priority document and therefore did not constitute relevant prior art.
Various lack of inventive step arguments were also dismissed and claim 1 of the patent as granted was upheld. The validity of the subclaims was therefore not considered.
However, the court reinforced the procedural rules on when validity challenges must be brought. Fakro had sought to raise new validity attacks for the first time in oral proceedings, based on a document that was already in the proceedings. This was deemed inadmissible. Any attacks against the validity of the patent must be introduced at the same time as the counterclaim for revocation.
The court then went on to consider infringement, finding direct infringement of claim 1 by all four Fakro entities. Infringement by the first, second and fourth defendants was not contested as they all offer the infringing embodiments within the UPC territory. "Passive legitimacy" of the third defendant was also established, with the third and fourth defendants being found to have acted jointly within the meaning of Article 25(a) UPCA. The court held that by linking to the website of the fourth defendant, the third defendant adopted the offers made by the fourth defendant as its own.
The court granted an injunction covering Germany, Austria, Denmark and Sweden. It ordered the recall and permanent removal of the infringing products from Fakro's distribution channels. Fakro was also ordered to provide certain information relating to the infringement and to pay €3000 (the court fee) as provisional damages, with damages to be calculated separately. The court did not order Dolle to pay security for enforcement as Fakro had not presented any reasons that would have justified it. The Hamburg LD did, however, set penalty payments of at least €10,000 per infringing product for breach of the injunction by Fakro.

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Decision date:

05 November 2025

Court of Appeal

Seoul Viosys v expert e-Commerce & Anor (UPC_CoA_762/2024 & UPC_CoA_773/2024)

Seoul Viosys (SV) is the owner of a patent for LED technology (EP 320). This patent is a divisional application of a European Patent application (the parent application or EP 598 A2). The parent application is the European regional phase of a Korean PCT application, which claims priority from three Korean applications.
SV started infringement proceedings in the Düsseldorf LD and expert counterclaimed for revocation. The court held EP 320 invalid for added subject-matter, rejected the requests for amendment of the patent and dismissed the infringement action. SV appealed this decision.
The Court of Appeal first acknowledged that the parties agreed on who the skilled person was before applying the claim interpretation principles from Nanostring v 10x Genomics.
In interpreting features 1.2 and 3 of claim 1, the Court of Appeal agreed with SV. At first instance, the Düsseldorf LD took the view that claim 1 one was limited to one mesa, basing its opinion on the use of the singular in feature 4.1, according to which the reflective electrode is to be arranged on the mesa. However, the Court of Appeal disagreed, noting that "the mesa" in feature 4.1 merely means that at least one reflective electrode is arranged on at least one mesa. The Court of Appeal also considered the use of "comprehensive" at the beginning of claim 1 to suggest that the LED may have other elements, such as additional mesas with additional electrodes. The Court of Appeal therefore considered that "one" mesa be regarded as indefinite within the meaning of "at least one" and that the term "one mesa" in the patent claim refers to the presence of at least one mesa and thus includes embodiments with multiple mesas.
Despite siding with SV on claim construction, the Court of Appeal went on to addressed the first instance decision on added matter. The Düsseldorf LD found that the earlier applications did not disclose an LED with a single mesa. The Court of Appeal rejected SV's procedural objection that the Düsseldorf LD had raised this view independently and without prior notice for the first time at the oral hearing. The Court of Appeal held that the finding was based on SV's own arguments and discussed during oral proceedings. The Court of Appeal ultimately disagreed with SV that Figures 24 to 26 showed a clear and unambiguous disclosure of a LED with a single mesa.
As the patent in dispute was a divisional, there is added matter if the subject matter of the patent extends beyond the application as originally filed or beyond the content of the parent application as originally filed. In this case, the parent application was the regional phase of a PCT application, which was in the Korean language. The Court of Appeal stated that if an international application is not written in one of the official languages of the EPO, the content of the earlier application is determined primarily on the basis of a translation.
Contrary to SV's view, this is not a purely formal or procedural requirement. The translation filed by an applicant is presumed accurate as it is in the applicant's interest that the examination be based on the true content of the application. The parties and the court can therefore rely prima facie on the accuracy of the translation.
SV argued that the translation filed was incorrect and submitted a corrected translation. The Court of Appeal held that if an applicant considers the translation incorrect and wants to rely on a corrected version, it must prove the inaccuracy and that, based on the corrected translation, the subject matter of the patent does not extend beyond the content of the earlier application. Merely submitting a corrected translation is not enough. In any event, the Court of Appeal did not find convincing SV's arguments as to why the corrected translation better reflected the content of the earlier application.
The Court of Appeal concluded that the first instance finding of invalidity based on added matter (a claim directed to an LED with only one mesa went beyond the content of the earlier application) was correct. The auxiliary requests all related to embodiments with a single mesa and therefore could not lead to a valid claim. The infringement claim was not considered in light of the invalidity finding. As such, SV's appeal was dismissed and SV was ordered to bear the costs of the appeal proceedings.

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Decision date:

03 November 2025

Paris CD

IMI Hydronic v Belparts (UPC_CFI_104/2025 & UPC_CFI_364/2025)

The parties are engaged in parallel proceedings before the Paris CD and the Munich LD. Belparts had commenced infringement proceedings against IMI before the Munich LD and IMI counterclaimed for revocation. Separately, a German IMI entity, IMI GmbH, brought a revocation action in the Paris CD, in which Belparts counterclaimed for infringement. There are also parallel EPO opposition proceedings, with a hearing before the Board of Appeals set for 27 November 2025.
The Munich LD consulted the parties on bifurcation, which both the parties voted against. The Munich LD therefore decided to proceed with both the infringement action and counterclaim for revocation, taking into account the date of the oral hearing at the EPO Board of Appeals and the scheduling in the Paris CD.
Belparts first sought referral of the counterclaim for infringement to the Munich LD under Rule 302.3 RoP, which IMI agreed to. The Munich LD rejected this request as the actions were not pending before the same division, as required under Rule 302.3 RoP.
Belparts then applied in both proceedings for a connection joinder under Rule 340.1 RoP. Belparts requested that i) the counterclaim for infringement in the Paris CD be heard together with the pending infringement case in the Munich LD; and ii) if the request was granted and the infringement cases are heard together, the revocation claim in the Paris CD be heard together with the Munich LD revocation counterclaim. IMI consented to Belparts' requests.
The court examined whether Rule 340.1 RoP could be applied consistently with Article 33 UPCA (competence of the divisions of the Court of First Instance) and its purposes.
The Munich LD rejected Belparts' requests. The court stated that "[a]s a result of the (procedural) choices the parties made", permitting the requests would still result in multiple oral hearings and multiple decisions concerning the same patent and (partly) the same parties and where the infringement actions and revocation actions are not being heard at the same time. This was said not to be in accordance with the interests of proper administration of justice and avoiding inconsistent decisions.
The proceedings were order to continue as scheduled.

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Decision date:

31 October 2025

Court of Appeal

Sun Patent Trust v Vivo Mobile Communication & Ors (UPC_CoA_755/2025 & UPC_CoA_757/2025)

Sun Patent brought an infringement action in the Paris LD against Vivo, claiming, among other things, that the terms of a licence to the patent at issue offered by Sun Patent to Vivo were FRAND. On the same day, Sun Patent also filed an application for protection of confidential information under Rule 262A RoP, which were partially granted. Sun Patent appealed the order, with the oral hearing taking place on 26 November 2025. In the meantime, it applied for suspensive effect of the partially granted confidentiality order, arguing that the appeal would become pointless if the confidential information was disclosed to Vivo's employees. The Court of Appeal rejected Sun Patent's request for suspensive effect.
Later, Vivo filed a preliminary objection under Rule 19 RoP, challenging the court's jurisdiction to decide Sun Patent's request for a FRAND rate determination. Vivo requested the court stay or postpone its deadlines for the statement of defence and counterclaim for revocation, until a final decision on the preliminary objection was made. The judge-rapporteur denied the request to postpone the filing under Rule 19.6 RoP, which was confirmed by the Panel. The Paris LD eventually rejected the preliminary objection.
Prior to the Paris LD's rejection of Vivo's preliminary objection, Vivo had filed a request under Rule 9.3 RoP to the Court of Appeal for (i) a stay of the Paris LD proceedings pending the confidentiality appeals; or (ii) in the alternative, an extension resetting its statement of defence and counterclaim for revocation deadlines to two months starting from the day of service of the decision in the appeal proceedings concerning the confidentiality orders.
The Court of Appeal refused the application. It held that Rule 21.2 RoP permits a stay only where an appeal has been lodged against a decision or order of the judge-rapporteur on a preliminary objection under Rule 21.1 RoP. Although a stay may be granted under Rule 21.2 RoP under exceptional circumstances, an appeal against a decision or an order on a preliminary objection must already have been lodged. There cannot be a stay based on anticipation or speculation of such an appeal.
Rules 19 to 21 RoP provide specific rules for preliminary objections. The court emphasised a strict application of these provisions as they may differ from general rules, such as the rules for staying proceedings (Rules 295 to 298 RoP).
The same approach applies to extensions of time limits for submissions in first instance proceedings under Rule 9.3 RoP. As a general rule, such extensions must be decided upon by the Court of First Instance. In this case, Vivo had not justified why the Court of Appeal should exceptionally decide first, nor had it justified why it had not applied to the Paris LD for the relief it sought first.

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