# News Detail Share now [](https://www.linkedin.com/uas/login?session_redirect=https%3A%2F%2Fwww.linkedin.com%2FshareArticle%3Fmini%3Dtrue%26url%3Dhttps%3A%2F%2Fhoyngrokhgroup.com%2Fde%2Fneuigkeiten%2Fdetail%2Fupc-unfiltered-by-willem-hoyng-upc-decisions-week-24-2026%26title%3DUPC%20Unfiltered%2C%20by%20Willem%20Hoyng%20%E2%80%93%20UPC%20decisions%20week%2024%2C%202026%26summary%3D "Linkedin") # UPC Unfiltered, by Willem Hoyng – UPC decisions week 24, 2026 15. Juni 2026 UPC Unfiltered News Unified Patent Court (UPC) Hot Topic News Below, [Prof. Willem Hoyng](https://hoyngrokhgroup.com/our-team/legal-experts/prof-willem-hoyng) provides his unfiltered views on the decisions that were published on the website of the Unified Patent Court (“UPC”) last week. His comments offer a unique insight into the UPC’s case law, as he chairs the Advisory Board of the UPC and participated in drafting the Rules of Procedure of the UPC. Interested in more of this? Stay tuned and subscribe [here](https://mailchi.mp/8fbd8890d03b/upc-unfiltered-by-willem-hoyng) for weekly updates. Find all decisions, commentary and more on our [UPC Intelligence Platform](https://upcintelligence.hoyngrokhmonegier.com/). On the go, multi-tasking or just prefer to listen? “Willem Hoyng’s UPC Unfiltered AI Podcast” – your weekly, AI-generated podcast discussing Willem Hoyng’s commentary on UPC case law of last week, offers a convenient alternative. Listen on [Spotify](https://open.spotify.com/show/53wwzF7LNSqqouR0wzXgJD?si=ae84739b09904ee1&nd=1&dlsi=71b6a174bdbd4f32) or [Apple Podcasts](https://podcasts.apple.com/us/podcast/willem-hoyngs-upc-unfiltered-ai-podcast/id1806092389). #### **30 April 2026** ***(late published)*** #### **Local Division Milan, Guala v LD Packaging** [UPC\_CFI\_840/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-04-30_LDMilan%20UPC_CFI_840-2026%20ORD%20Anonim.pdf) ***Service of Statement of Claim*** **Facts** 1. LD Packaging is a Chinese company. 2. Guala was in the process of suing LD Packaging via the The Hague Convention, without any result so far. 3. Guala noted that LD Packaging would be exhibiting in Germany. 4. Guala argued that this meant that LD Packaging would have a temporary place of business in the UPC territory, and asked the Court for consent to serve the Statement of Claim during the exhibition at the booth of LD Packaging. **The Court** The Court agreed with a very elaborate (and solid) reasoning. **Comment** 1. It is notoriously difficult to serve the Statement of Claim in main proceedings on a Chinese defendant. Often one has to await at least the 6-months period indicated in the The Hague Convention in order to be able to have effective service acknowledged by the Court. 2. Different from what we have seen from certain Divisions, this does not apply for preliminary measures pursuant to Art. 15(3) of the The Hague Convention. 3. The decision of the Local Division in Milan shows that if you want to start main proceedings against a Chinese defendant, it is worthwhile to check if the potential defendant is not exhibiting somewhere in the EU, in order to make smooth service possible. #### **27 May 2026** ***(late published)*** #### **Local Division The Hague, Ericsson v Transsion** [UPC\_CFI\_1568/2025; UPC\_ CFI\_1791/2025; UPC\_ CFI\_1793/2025 ](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/20260527%20UPC_CFI_1568-2025%20Confidentiality%20Order.pdf) ***Confidentiality in SEP cases*** **Facts** 1. This concerns three infringement cases with respect to SEPs. 2. Ericsson asked for a confidentiality regime for the infringement proceedings in The Hague, and also for proceedings in Mannheim and Paris. 3. Ericsson made a distinction between: 1. confidential information with respect to the discussions between the parties; 2. information with respect to comparable licenses etc. 4. The LD disclosed the confidential information – under confidentiality – to (only) the Representatives in the The Hague cases. 5. The JR organized a management conference for the further question. **The Court** 1. After the management conference, the parties exchanged proposals with respect to (access to) the confidential information. 2. The R. 9.3 RoP application filed by the defendants, in which they sought to get an extension for filing their technical Statement of Defence until a confidentiality club was formed, was dismissed. 3. The defendants lodge a new R. 9.3 request, a revision request in the earlier one and a R. 263 RoP request. **The Judge-Rapporteur (“JR”)** 1. The JR grants confidentiality on the basis of R. 262.2 RoP for the information about the discussions between the parties. 2. The order confirms that the parties have agreed for defendants 5-7 and 10 to an external-eyes-only regime, which on the defendants’ side includes a party expert. 3. The JR orders a first-phase external eyes only regime , because only relevant comparable licence agreements need to be considered in the proceedings. Agreements that are ultimately found to be irrelevant do not need to be disclosed to the defendants’ in-house personnel, while preserving their confidentiality is important.. 4. The Court dismisses the other requests as untimely or devoid of purpose. **Comment** 1. The production of license agreements to show that the claimant’s license offer was FRAND is often complicated because parties have agreed confidentiality and such agreements contain sensitive information. Moreover, the agreements involve not only the claimant but also third parties, each of whom has an independent and legitimate interest in the protection of confidential information. 2. The Court gives elaborate reasons why in a first phase an external eyes only regime is allowed, in order to resolve which agreements are truly comparable and relevant for the litigation, for which defendants can use a party expert. 3. Only after that phase, employees of the defendant need to be added to the confidentiality club. In general, if requested, the claimant and third parties will have the possibility to object against such person and/or the person is bound to certain conditions (such as not being involved during a number of years in license negotiations etc.). 4. In conclusion, it seems to me that the Court has found a sensible solution, which does not violate R. 262A RoP. #### **1 June 2026** ***(late published)*** #### **Local Division Munich, Nokia v Geely** [UPC\_CFI\_661/2025; UPC\_CFI\_236/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-06-01%20-%20Entscheidung%20R.265%20u%20R.370.9%20-%20CFI_661-25%20u%20CFI_236-26%20-%20signed_all%20and%20anonymized-1.pdf) ***Settlement*** **Facts** 1. An infringement case was brought by Nokia against Geely and 31 defendants, involving different car manufacturers, with respect to EP 4 090 075. 2. Defendants counter-claimed for revocation. 3. Nokia and the defendants requested the withdrawal of their respective actions and the reimbursement of 50% of the court fee. 4. The parties agreed to each other’s withdrawal requests and agreed not to ask for costs. **The Court** 1. The Court granted the request. Each party bears its own costs. 2. The Court further ordered 50% reimbursement of the court fees. **Comment** 1. The UPC action forced a settlement. The stakes were too high for the car manufacturers to risk an injunction? 2. The Court referred to the decision of the Court of Appeal for the request for reimbursement of the court fees. The new rules are applicable to a request for a reimbursement of fees requested after 1 January 2026. In the event of withdrawal before the end of the written proceedings, 50% will be reimbursed instead of 60%. #### **4 June 2026** ***(late published)*** #### **Local Division Hamburg, Dyson v Dreame** [UPC\_CFI\_387/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/387_2025%20Withdrawal%20enforcementSKSJ%20%281%29.pdf) ***Imposition of penalty payments*** **Facts** 1. Dyson requests to impose penalty sums due to non-compliance with no. III of the Court of Appeal’s decision of 6 March 2026 (UPC\_CoA\_789/2025). 2. The parties reached an agreement. 3. Dyson filed for withdrawal and Dreame consented to the withdrawal. 4. The parties did not want a cost decision. **The Court** The Court granted the request. **Comment** Does also the threat of penalty sums (which go to the Court) help (if likely to be justified) to reach agreement? #### **5 June 2026** ***(late published)*** #### **Local Division Paris, Align v Angelalign** [UPC\_CFI\_684/2025; UPC\_CFI\_2279/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Order%2005.06.2026%20ALIGN%20R9.2-signed.pdf) ***Late-filed arguments*** **Facts** 1. Infringement/revocation proceedings. 2. Align requested the JR to disregard and declare inadmissible the new non-infringement arguments raised by Angelalign in their Rejoinder. **The Court** 1. The Court referred to R. 24(e) to (g) RoP and stated that Angelalign, in their Statement of Defence, only raised a non-infringement defence with respect to feature 1.3.1, making no mention of features 1.3 and 1.3.4. 2. The new arguments did not respond to anything stated in the Reply. 3. The JR declared the new non-infringement arguments to be inadmissible. **Comment** 1. The front-loaded character still seems to pose difficulties for representatives. It requires a completely different attitude to litigation. You have to work twice as hard on your defence brief to ensure that all your non-infringement arguments are in the brief. 2. The case shows the danger of the system for the defendant. If the late-filed argument is the winning argument, the client loses the case and cannot correct this on appeal. This shows that, if at all possible, you should start thinking about non-infringement arguments as soon as possible, even before you are sued. #### **8 June 2026** #### **Local Division Mannheim, Nokia v Geely** [UPC\_CFI\_1291/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/1291-2026%20order%20dated%208%20June%202026.pdf) ***Settlement*** **Facts** 1. On 20 April 2026, Nokia obtained an *ex parte* anti-antisuit injunction against Geely on the basis of EP 3 799 333 and EP 4 090 075 under the condition of providing security of EUR 600.000,00. 2. The security was provided on 21 April 2026. 3. On 27 May 2026, with the approval of Geely, Nokia requested the withdrawal of the request for a PI and the return of the security. **The JR** granted the request. **Comment** 1. See also the 1 June 2026 decision between the parties (UPC\_CFI\_661/2025). Through its *ex parte* anti-antisuit injunction, Nokia prevented Geely (and all the car manufacturers in the Group, such as Lotus, Smart, Lynk & Co) from obtaining an antisuit injunction from a foreign court, for example in the form of a so called interim license from a UK court which (allegedly) would mean that Nokia could not invoke its European patents in the UPC. 2. From the 1 June case, one can see that Nokia asked the Munich Local Division to grant injunctions against Geely, which apparently forced it to settle. #### **8 June 2026** #### **Local Division Düsseldorf, Sanofi v Amgen** [UPC\_ CFI\_195/2025; UPC\_ CFI\_568/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2025-06-08%20Order%20Withdrawal_BT_signed_XDG_AK_IR_LD%20%281%29.pdf) ***Infringement action*** **Facts** This decision concerned two infringement cases, which were stayed because of appeal proceedings against a first instance decision in UPC\_ CFI\_505/2023, and were a part of an overall settlement. **The Court** 1. The Court accepted the withdrawal of both parties. 2. No cost decision as parties agreed. 3. 50% return of fees. **Comment** Infringement case settled after the written phase but before closure of the written procedure: make sure – as in these cases – that you ask for the return of court fees, if you want such return, together with the withdrawal requests. #### **8 June 2026** #### **Local Division Hamburg, Nixu v Infoblox** [UPC\_CFI\_360/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/360_2026%20Order%20on%20Preliminary%20Objection-.pdf) ***Preliminary objection*** **Facts** 1. On 30 January 2026, Infoblox filed an infringement suit with respect to EP 2 005 696. 2. Defendant 1 is a US company and defendants 2 and 3 are German companies. 3. For defendant 1, the claimant simply referred for jurisdiction to Art. 8 (1) of the Brussels Ibis Regulation (“BR”). 4. Nixu argued that the two German companies do not operate in the UK, so there is no reason to accept jurisdiction against a US company for infringement in the UK. **The Court** 1. R. 13.1(i) RoP requires the claimant to at least mention the relevant facts for establishing jurisdiction and the internal competence of the Division. It is not necessary to mention the different articles on which jurisdiction is based, as it is the Court’s task to apply the law to the facts. 2. As for defendant 1, the Statement of Claim contains the factual allegation that it is the operator of the general website from which the NOS software can be downloaded. This is sufficient to establish jurisdiction of the UPC on the basis of Article 7(2) BR. However, Article 7(2) in combination with Article 71b(2) BR give only jurisdiction for the UPC for infringing acts in the contracting member states. 3. The only way you can obtain jurisdiction for the UK is through Art. 8(1) BR. Defendants 2 and 3, who are established in the UPC, can function as anchor defendants. 4. Art. 8(1) BR, which is extended to persons established outside the EU by Art. 71b(2) BR, is applicable if it is expedient to hear the cases against the anchor defendant and the Art. 8(1) BR defendant together to avoid irreconcilable judgements. 5. It is at least necessary for Art. 8(1) BR jurisdiction that the anchor defendant and the Art. 8(1) BR defendant have committed infringements in the same country (here, the UK) for which the injunction is claimed. 6. It is clearly not enough for the parties to each infringe different national parts of the EP. 7. The JR ruled that there is no jurisdiction for the UK against defendant 1 because infringement by defendants 2 or 3 in the UK has not been established. 8. The JR did not grant leave for appeal, as this also had not been requested. **Comment** 1. A very clear decision of the JR. If you want to invoke Art. 8(1) BR, you have to establish that there is the possibility of irreconcilable judgements. It is not enough to argue that the UPC has universal jurisdiction over the anchor defendant and therefore also over the UK, because if the defendant does not infringe in the UK, there is no possibility of irreconcilable judgments, as the UK court will only rule on the infringement of the Art. 8(1) BR defendant (here, the UK company) in the UK, and the UPC will only rule on the infringement in the UPC. 2. This has been decided by the European Court of Justice in *Roche v Primus* (decision of 13 July 2006, C-539/03). I add that we then assume that this is still good law, because you could also argue that both national courts (the UK and the UPC) have to apply (at least indirectly) the same law (Article 69 EPC) to the same facts. If the outcome differs, are these decisions then not irreconcilable? *De facto* yes, but *de iure* not, because an EP patent is nothing more than a bundle of national patents, each valid only in its own country. 3. In this case, therefore, the claimant should have set out the facts establishing infringement by the anchor defendants (the German companies) in the UK in the Statement of Claim. 4. However, it is important to realize that, even if the claimants had done so, that would not be the end of the story, because as the Court of Appeal has stated in Kodak v Fuji (decision of 2 June 2026, UPC\_CoA\_312/2025, UPC\_CoA\_333/2025, UPC\_CoA\_880/2025 and UPC\_CoA\_882/2025) the UPC also has to apply international law. This includes the rules of comity, and you can wonder whether the UPC should rule on infringement of a US company in the UK. In my opinion, the acceptable limit lies in dealing with infringement in the UK by UPC-based companies and its UK subsidiaries. Likewise, I would see no problem with the UK courts dealing with the infringement of UK companies and their UPC subsidiaries in the UPC. 5. Whether a UK court can deal with infringements of UK companies and their UPC subsidiaries in the UPC, is a question of UK law and the UK view with respect to comity. 6. As this is the end of the case against the US defendant for the UK, the JR is correct in holding that you can directly appeal. I would not recommend it, as it will not be successful! #### **8 June 2026** #### **Local Division Milan, Morello v Gastroteam** [UPC\_CFI\_2046/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-06-08_LDMilan%20UPC_CFI_2046-2025%20DEC_Anonim.pdf.pdf) ***Default / costs*** **Facts** 1. On 19 November 2025, the Local Division Milan granted an injunction in default proceedings against the defendants for infringement of EP 3 691 454 and ordered defendants to pay the costs to claimant. 2. On 18 December 2025, the claimants started cost proceedings, claiming € 62.719,20. 3. On 2 April 2026, the claimant asked the Court to declare that service had validly taken place after service by mail in accordance with the EU Service Regulation had resulted in a message “not claimed”. **The Presiding Judge** 1. The defendant Gastroteam had knowledge of the decision since 2 January 2026 as they had sent a letter to the claimant asking for a settlement. 2. The judge, referring to R. 271.6(b) RoP, considered that the judgment has been duly served. 3. With respect to the cost proceedings, the judge referred to R. 151(a) RoP, which refers to R. 13.1(d) and to R. 270.2 RoP, concluding that service of the application for costs is necessary. 4. Two attempts of service had taken place but every time the mail was returned with “not claimed”. 5. Referring again to R. 271.6(b) RoP, the judge considered that service had taken place. **Comment** 1. The Swedish defendant decided not to appear in court which resulted in a default judgment. Before cost proceedings can be started, this judgment has to be served on the defendant. 2. After this had been done, the judge considered it necessary that the application for costs also had to be served. In my opinion, this decision was right and convincingly motivated. 3. Using the EU Service Directive was necessary, because there was no representative and therefore no electronic service address for the Swedish defendant. 4. This further shows the complications arising from a separate cost procedure. However, representatives should realize that such a separate cost procedure is not necessary. You can also claim costs in your Statement of Claim, and I think that, in a default situation, you can specify these costs further in your application for a default judgment. 5. The case also shows that the rule requiring the (sub)registry to carry out service, rather than the claimant, as is the case in many member states, causes a lot of work and makes the Court unnecessary expensive. Unfortunately, I was also overruled on this point in the Rules Committee! I still believe that it would be much better to change this and leave the service to be carried out by the parties. #### **8 June 2026** #### **Local Division Brussels, 2seventy Bio v Johnson & Johnson** #### **Intervener: the USA department of health** [UPC\_CFI\_029/2026; UPC\_ CFI\_1934/2026; UPC\_ CFI\_1940/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/ORD%28I%29_R37_UPC_CFI_029-1934_1940-2026_Signed.pdf) ***Bifurcation*** **Facts** 1. This decision concerns an infringement case in which the defendants have filed a counterclaim for revocation. 2. After hearing the parties, the Court had to decide whether or not to bifurcate. **The Judge-Rapporteur (“JR”)** The JR stated that the Local Division wanted to decide on both the infringement and the revocation in the same proceedings, citing the advantage of this approach. The JR gave the parties the opportunity to react, and if no response was received before 12 June 2026, the Court would assume that there were no objections. **Comment** Indeed, this whole bifurcation possibility in the UPCA is a political compromise, as (among some others) Germany has such a (national) system. In the UPC, it is customary not to use that option because of the advantages of dealing with both issues in the same case (efficiency, same claim interpretation in both cases, no unjustified injunctions because the patent is later held to be invalid etc.). #### **9 June 2026** #### **Local Division The Hague, Ferring v Accord** [UPC\_ CFI\_1470/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/R.9%20appl%20to%20align%20deadlines%20-%20CFI_1470_2026.pdf) ***Infringement action / Alignment*** **The JR** At the request of the 7 defendants except defendant 6 who had not (yet) filed an appearance, the JR aligned the dates for the Preliminary Objection and Defence/Counterclaim for revocation for all defendants, under the reservation that defendant 6 was validly served on 18 May 2026 in accordance with R. 271.b RoP, which was quite likely. **Comment** In my opinion, this is a good example for a new Rule because it seems to be in everybody’s interest for the dates of multiple defendants to be synchronized. However, the formulation of such a Rule will need some careful consideration in order to avoid delays or delaying tactics! #### **10 June 2026** #### **The Court of Appeal, Shark Ninja v SEB** [UPC\_CoA\_61/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/order%20confidentiality%20SEB%20request%2010%20June%202026%20signed_Anonymized.pdf) ***Confidentiality c.s.*** **Facts** 1. The Paris Local Division dismissed an application for a Preliminary Injunction (“PI”). Shark Ninja appealed. 2. The Court of Appeal noted the presence of certain confidential information in the Statement and Grounds of Appeal and invited SEB to comment. SEB also requested confidentiality of certain exhibits in its Statement of Response, referring to R. 262.A RoP and R. 262.2 RoP. 3. SEB also asked the Court to disregard new arguments. **The Court of Appeal** 1. The Court of Appeal granted the confidentiality request with a confidentiality club. 2. The Court of Appeal granted Shark Ninja until 17 June 2026 to respond to the allegedly late-filed arguments and evidence, as well as to the confidential passages in SEB’s response. 3. R. 262.2 RoP requests will be decided when a request (by a member of the public) is made. **Comment** 1. This is not the first time that the Court of Appeal has stated that an R. 262.2 RoP request should be dealt with when a request for public access is made. This also seems to be more in accordance with the text of R. 262.2 RoP, but R. 262.A RoP was later added to the Rules. I do not think that the text of R. 262.2 RoP prevents a party from making such a request together with a R. 262.A. RoP request, which seems practical as it means a party does not make the request again when a public access request is filed, and the Court does not have to make a decision again. 2. In general (noting also that “reasoned request” in R.262.1(b) RoP seems not to serve any purpose), it may make sense to have to close look at this rule when there is an update of the RoP. One possibility could be that a granted R. 262.A RoP request automatically means that information will not be made public unless it is challenged by the members of the public. In that case a further possibility could be that, after the case (in an instance) has ended, access is automatically given (unless one of the parties raises serious objections which outweigh the right of public access, within a week of being informed about the access request). #### **10 June 2026** #### **Local Division Düsseldorf, Hologic v Siemens** [UPC\_CFI\_758/2024 ; UPC\_ CFI\_259/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/758_2024_Decision-final-redacted_signed_geschw%C3%A4rzt.pdf) ***Infringement case re EP 2 352 431*** **Facts** 1. Hologic filed an infringement action on the basis of a patent for which the opt-out had been withdrawn, and which was maintained by the EPO’s Board of Appeal. 2. The patent relates to medical imaging, more specially to mammography. 3. The defendants denied infringement and counterclaimed for revocation. **The Court** 1. The Court discussed the patent and formulated the technical problem *(“to identify a mechanism for reducing considerable image artifacts that result from X-ray source movement during tomosynthesis or other image scan”).* 2. The Court discussed the disputed claim elements after referring to the (known) principles to be applied. 3. In its claim interpretation, the Court also referred to the interpretation used by the Board of Appeal and basically followed the interpretation by the claimant. 4. The Court stated that “the scope of a claim may not be limited to the preferred embodiment”. 5. The Court rejected all the invalidity arguments. 6. With respect to insufficiency the Court remarked: *“The test to be applied is whether the skilled person is able to reproduce the claimed subject matter on the basis of the patent without any inventive effort and without undue burden. An invention is sufficiently disclosed if the patent specification shows the skilled person at least one way – and in case of functional features: one technical concept – of performing the claimed invention*.” 7. The Court concluded that there was no added matter and that the challenge with respect to the priority date is to be dismissed. 8. The patent was held to be novel and inventive. 9. The patent was infringed. 10. “Offering” as an infringing act should be considered in the economic sense. Advertising is offering. 11. The Court concluded that there is no private prior user right according to German law. The argument failed already because the defendants “*did not convincingly plead any circumstances to demonstrate that they had already made a firm and final decision to use a system within the meaning of the patent claim before the priority date*”. 12. The defendants argued (for Germany?) a positive right to use their own patent based on Section 9(1) of the German Patent Act which states in English translation: “*the patent has the effect that only the patent owner is entitled to use the patented invention in accordance with the applicable law*”. However, the Court stated that such positive right to use under one’s own only exists strictly and exclusively within its teaching. 13. The Court stated that a permanent injunction is the rule. The proportionality defence is rejected. In this respect, 1. it is not relevant that the claimant does not use the patented technology itself. 2. the fact that the development of the infringing apparatus is an independent development parallel to the development of the patented machine is irrelevant, also because the patent in suit was already published in 2011. 3. the patients interests are only relevant if the infringing embodiment is the sole available treatment method or represents an improvement upon the available treatment methods resulting in a notable enhancement of patient care. 14. Recall extends to doctors and hospitals and universities. 15. Modification of the product is also not allowed. Products have to be destroyed. 16. The Court also ordered publication of the decision. **Comment** 1. The Court cited all the correct principles with respect to validity and infringement, providing an elaborate explanation each time as to why it was not convinced by the arguments of the defendants. 2. However, in this case, I already have serious doubts about the proportionality of granting an injunction as it seems quite clear that the infringing device has, or at least may have, superior qualities and is not marketed by the patentee, who also does not market any “competing” product either. 3. I certainly cannot agree with a recall from hospitals, doctors and universities and, on top of that, destruction. What are the compelling reasons for that, and what is the interest of the patentee? Is the patentee not much better off with damages also calculated on the continued use of the products already sold? How quickly can doctors, hospitals etc. get replacements of (different) products which probably will require training before use etc.? This, moreover, undoubtedly can have an effect on patient care. Patients who may have to wait longer for a scan and are scanned with apparatus that the users are less familiar with. In the 21st century, do we really want the destruction of products which can probably easily be reused for non-infringing purposes? In my view, this way proportionality remains an almost dead letter and I cannot see that the patent system is beneficial for society in the light of such results. #### **10 June 2026** #### **Court of Appeal, Speed Care v Teleflex** [UPC\_CoA\_85/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Order%20discretionary%20review%20-%20Speed%20Care%20v%20Teleflex%20%28UPC-CoA-85-2026%29.pdf) ***Value of litigation*** **Facts** 1. Decision of the Local Division Hamburg of 27 April 2026 to dismiss the infringement claim after revoking the relevant claims. 2. In the (final) decision, the value of both the claim and the counterclaim were set at € 1 million. 3. On 10 May 2026, the applicant filed an application to adjust the value of the litigation and, on the alternative, to grant leave for appeal with respect to the value of litigation decision. 4. The respondent asked the Local Division not to adjust and not to grant leave for appeal. 5. In the absence of a decision with respect to the request for leave for appeal, the applicant filed an application for discretionary review. **The Standing Judge** 1. The standing judge agreed that, although the determination of the value is included in the decision, it is, in fact, a procedural decision which is governed by R. 220.2 RoP and R. 220.3 RoP. 2. However, the standing judge explained that the reasoning of the applicant leading to the conclusion that it is a procedural decision was flawed, as R. 220.1 RoP concerns only the value of the infringement claim, not the value of litigation in the counterclaim (in order to calculate the court fee, which is not necessary for the counterclaim, as that court fee is a fixed fee). 3. If the Court of First Instance does not make a decision on the request for leave for appeal within 15 days, this should be seen as a refusal for leave. 4. The standing judge then explained that section 2b of the Guidelines by the Administrative Committee only states that the value for the counterclaim may be set at 150% of the value of the infringement case. 5. The standing judge went even a step further and pointed to the fact that the decision contains reasons for not following the 150% rule (the small size of the company and the short remaining time of the patent). **Comment** 1. The representatives did their utmost best to motivate why they could ask for discretionary appeal, but their reasoning was found to be wrong. However, the result was right! In my Gymnasium days, it meant you got a 4 out of 10! 2. If they had carefully read the decision, as the standing judge did, they would have realized that they would not been able to establish a manifest error. 3. However, we should be grateful to them and their clients, who paid for this exercise, because two important procedural issues were resolved: 1. if the LD does not react to a request for leave for appeal within 15 days then that is a refusal; 2. establishment of the value of litigation in the (final) decision is an order ex R. 220.2 RoP. 4. I add to all this that setting the value for both infringement and revocation during the interim conference seems to me to be the preferred way of handling this. In the end, as the standing judge stated, it is the exercise of management powers. No good manager starts with management after the fact! #### **10 June 2026** #### **Local Division Hamburg, Infoblox v Nixu** [UPC\_ CFI\_360/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/retacted-%20360_2026%20Order%20on%20Security%20for%20Costs%20R%20158_signed.pdf) ***Security for costs*** **Facts** 1. The claimant and defendant are domiciled in the US. 2. The defendant requests security for costs citing that the claimant is established only very recently, with the apparent purpose to act as a litigation vehicle. 3. The defendant further argues that enforcement in Florida is difficult. **The JR** 1. According to the case law of the UPC, enforcement in the USA is not a reason to grant security, as it is to be expected that decisions of the UPC will also be recognized and can be enforced in Florida. 2. The financial situation of the claimant justifies security. A portfolio of European patents is not sufficient security. 3. The JR considers the potential value of the litigation € 2,5 million which would give a ceiling for recoverable costs of € 400.000. 4. Security set on € 200.000. **Comment** For representatives to remember: 1. A US company is not treated differently as a UPC company as to security for costs. 2. A portfolio of European patents is not to be considered as a secure asset and cannot (in general) serve as security. 3. Security is to be granted at 50% of applicable ceiling. The above three rules applied by the JR can be considered as the general guidelines for the UPC which may allow parties to agree without a court fight. #### **11 June 2026** #### **Local Division Munich, ASC v Xiaomi** [UPC\_CFI\_1321/2025; UPC\_CFI\_1340/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-06-11%20-%20Order%20R.9.3%20-%20CFI_1321-25%20-%20signed.pdf) ***Extension of deadline*** **Facts** 1. This decision relates to a claim for infringement and counterclaim for revocation. 2. The oral hearing was set for 11 December 2026. 3. The deadline for the claimant’s next pleadings expires on 22 June 2026. 4. The claimant asked for an extra two weeks. The defendant agreed on the condition that it also gets an two additional weeks for its next pleadings. **The Judge-Rapporteur (“JR”)** 1. The Claimant raised as reason for the request that there are several other deadlines also in national proceedings. 2. The JR refused the extension, explaining that this would also result in a rather short period for preparation for the oral hearing. **Comment** 1. The JR is completely right. If we start on the path that parties can decide together to change the deadlines, then that will be the end of an efficient UPC. At the UPC, being busy is not a reason for extending deadlines. Lawyers and patent attorneys (say that they) are always busy! This is no excuse and “busy” and “hard-working” are very “loose” concepts. 2. My impression is that the UPC judges work harder than many representatives, and these representatives should realize that, certainly in First Instance, the judges have no younger associates or secretaries etc. to assist them. Until now, it has not even been possible to allow them to have a US style “clerk” working for them. Every brilliant law student would be delighted to work for a judge for a year as an intern, and the selected good ones could be of great help. However, in the UPC we do not seem to be able to realize that. #### **12 June 2026** #### **Central Division Milan, Insulet v EOFlow** [UPC\_ CFI\_1230/2026 ](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/GDPR-checked_1230-26%20INSULET.pdf) ***Cost decision*** **Facts** 1. Insulet filed for an application for costs with respect to: 1. a request by EOFlow for leave for appeal against an order which imposed a penalty payment; 2. the costs of the appeal proceedings with respect to the penalty order; 3. costs with respect to ancillary remedies decided by the Court of Appeal on 18 March. 2. Insulet also asked for a confidentiality regime with respect to its counsel’s invoice. 3. EOFlow filed a defence. **The Judge-Rapporteur (“JR”)** 1. The JR considers that the applications are timely filed within a month after the decisions of 13 and 18 March. 2. The JR cites and applies R. 370.6 RoP for the value of the action. In this case, the objective value of the leave for appeal and the appeal is the imposed fine of € 150.000, which means that the ceiling for recoverable costs is € 38.000. 3. The Court considers 25 hours at the hourly rate which applicant applies reasonable for the work performed and, for the leave for appeal phase, 4 hours. 4. The Court awards € 14.000. 5. The request for confidentiality is dismissed because R. 262.A RoP and R. 262.2 RoP do not extend as a matter of course to costs information merely because such information appears in communication between client and counsel, or in internal descriptions of legal work. The protection afforded by these Rules is narrower and is directed to trade secrets and other genuinely confidential commercial information. Ordinary cost narratives and invoices are not, unless they concretely reveal protected information of the party concerned. **Comment** 1. The JR applies all the criteria in a very thorough way and comes to the conclusion that the lawyers of Insulet (claiming in excess of the ceiling of € 38.000) could have done the work at their hourly rate for € 14.000. 2. In line with previous decisions of the Milan Central Division, the JR decides that invoices of representatives do not as such qualify as trade secrets. I fully agree. More reason for reasonable representatives to agree on costs! **– All comments above are** [**Prof. Hoyng**](https://hoyngrokhgroup.com/our-team/legal-experts/prof-willem-hoyng "https://hoyngrokhgroup.com/our-team/legal-experts/prof-willem-hoyng")**‘s personal opinions –**