# 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-39-2026%26title%3DUPC%20Unfiltered%2C%20by%20Willem%20Hoyng%20%E2%80%93%20UPC%20decisions%20week%2039%2C%202026%26summary%3D "Linkedin")





# UPC Unfiltered, by Willem Hoyng – UPC decisions week 39, 2026

 28. September 2026  UPC Unfiltered Unified Patent Court (UPC) 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).




#### **18 September 2026 (*****late published)***
**Local Division Mannheim, Huawei v Meta**

[UPC\_CFI\_668/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/aee2a841-4c30-43cf-b199-2444f3761343.pdf)

***SEP case / settlement***

**Facts**

1. Huawei sued Meta/Facebook for infringement of EP 3 471 419. Meta counterclaimed for revocation.
2. The parties settled, withdrew their claims and requested a refund of court fees.

**The Judge-rapporteur (“JR”)**

1. The JR granted the requests and ordered a 50% refund of the court fees, i.e. 9,950 €.
2. The value of the dispute was set at € 1,000,000 for each action.

**Comment**

I do not know how the JR arrived at this value of the litigation. It seems rather low to me if the consequence of the litigation could be shutting down Facebook (but I admit that I do not know all the facts).
However, what I know is that, as a general rule, the value of a counterclaim may be 50% higher than the value of the infringement proceedings. € 9,950 is an extremely low price to pay for a settlement! (and for a Court which has to finance itself).

#### **18 September 2026** ***(late published)***
**Local Division Mannheim, NovaCloud v Meta**

[UPC\_CFI\_1310/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/6c7d5904-c139-4eb8-aab2-171a5345eea5.pdf)

***Settlement***

**Facts**

1. Settlement with respect to EP 4 024 777.
2. The claimant requests a 60% refund of fees, basically stating again that the Court of Appeal was wrong to apply the new 50% fee refund to cases filed before 1 January 2026.

**The Judge-rapporteur (“JR”)**

The JR accepted the withdrawal an ordered a 50% refund of the court fees.

**Comment**

I agree with claimant, but it is the Court of Appeal that decides! (And it is logical that the JR follows the Court of Appeal!)

#### **21 September 2026**
**Local Division Düsseldorf, ETRI v Meta**

[UPC\_CFI\_2051/2025 ; UPC\_CFI\_1653/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/8da4cc06-f980-4965-b872-b34b8918e0ae.pdf)

***Settlement / stay***

**Facts**

1. ETRI invoked EP 3 258 692 against Meta (Facebook).
2. Meta filed a counterclaim for revocation.
3. After the counterclaim was filed, the parties asked for a stay because they had reached a settlement which required implementation.
4. The parties now filed for withdrawal of their claims.

**The Court**

1. The Court resumed the proceedings.
2. The Court permitted the withdrawal.
3. The Court ordered a 50% refund of the court fees.

**Comment**

The Court granted a stay because the parties had reached an agreement which had to be implemented. That is a useful stay, because if under the agreement a certain amount must be paid for e.g. past use of the patent and/or a lump sum for the future, the patentee in general does not want to withdraw the action until payment is received. At the same time, the parties do not want to litigate any further. Especially if such a stay is for a relatively short period (here: two months), the possibility of such a stay can be helpful in reaching a settlement.

#### **21 September 2026**
**Court of Appeal, Sidel v Omnia**

[UPC\_CoA\_90/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/d9462822-4752-49cf-823d-2fb0f0524bfa.pdf)

***Start before grant***

**Facts**

1. Omnia filed an action before the Central Division in Paris seeking a declaration of non-infringement of EP 4 594 194 and EP 4 624 351.
2. The patents had not yet been granted.
3. Thereafter, Sidel filed an opt-out.
4. Thereafter, still before the patents were granted, Sidel filed a preliminary objection arguing that the Court was not competent.
5. The Judge Rapporteur rejected the preliminary objection and granted leave to appeal.
6. Sidel appealed.

**The Court of Appeal**

1. R. 21.1 RoP states that, if the JR rejects a preliminary objection, an appeal may be brought on the basis of R. 220.2 RoP, which means either together with an appeal against the final decision or within 15 days after the service of the order with leave for appeal.
2. If leave for appeal is not granted within those 15 days, a request for discretionary review must be filed within 15 days after the expiry of that first 15 days period (even if the JR at first instance grants leave for appeal after the first 15 days period).
3. Sidel did not file a request for discretionary review within the second 15 days period but did file its Grounds of Appeal within that period.
4. The Court stated that the Grounds of Appeal (which contained several allegations with respect to manifest errors) could possibly be read as a request for discretionary review because of exceptional circumstances, but left that issue undecided as the appeal was unfounded.
5. The Court pointed to Art. (31)(b) UPCA and ruled that, as the Statement of Claim asked for a declaration of non-infringement of a patent, the CFI was clearly competent. The fact that the patents had not yet been granted did not turn the request into one for a declaration of non-infringement of patent applications.
6. The question whether the request can be granted must be decided in the further proceedings, as that is not a matter (of competence) which can be raised by way of a preliminary objection.
7. The Court of Appeal also rejected the objection that the Court lacked competence in view of the opt-outs.
8. The opt-out request was clearly made after an action in the sense of Art. 83(3) UPCA had been filed.

**Comment**

1. Whether the Court is competent is determined on the basis of what is stated in the Statement of Claim. Whether or not the relief sought can be granted, will be determined in the substantive proceedings. Representatives who are experts in patent law should also know the basics of procedural law.
2. Sidel’s complaint that it was deprived of the possibility to opt-out is also not truly justified. It could have opted out years earlier and should have done so before the EPO’s decision to grant the patents.
3. We have to wait for an answer to the question whether a case can be filed before the patent is granted. I do not see why that would not be possible after the EPO has announced its decision to grant and, therefore, the Statement of Claim contains the text of the patent as it will be published (and thus granted). The defendant knows exactly what it has to defend itself against, and as long as there is a patent in force at the time of the decision, I do not see a problem.

#### **22 September 2026**
**Local Division Paris, KEEEX v Adobe**

[UPC\_CFI\_530/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/e324bca5-6c34-4d2e-89fc-af03b385fff6.pdf)

***Interim conference***

**Facts**

1. Infringement and revocation proceedings with respect to EP 2 949 070.
2. An interim conference was held, to which this order pertains.

**The JR**

1. Value of the litigation: the parties propose € 6,622,802,000,00 for the infringement and revocation proceedings, which is above the maximum of €50 million, with a ceiling of €2 million for recoverable costs.
2. A settlement, including with the assistance of Patent Mediation and Arbitration Centre (“PMAC”), is not possible because the defendants are convinced that the patent is invalid.
3. The JR sets out the points to be discussed during the oral hearing and the points on which the panel seeks clarification, and sets the agenda for a one day hearing on 6 October 2026, stating that the hearing will be conducted entirely in French, with simultaneous translation at the defendant’s expense.

**Comment**

1. The case (about AI) concerns an astronomical amount of money according to the parties (almost €7 billion).
2. Although the agenda provides for an introduction by the Presiding Judge, I do not know if the judge will give a preliminary opinion. At least, I do not see any time in the agenda for the parties to prepare after hearing the preliminary opinion. From the survey organized by the Advisory Committee, it became clear that representatives appreciate a preliminary opinion from the panel. The Advisory Committee recommended that all Local Divisions give a preliminary opinion. In my opinion, it would be preferable if, on this (important) point, it did not make a difference where a party brings its case before the UPC.

#### **22 September 2026**
**Local Division Munich, Maxell v Samsung**

[UPC\_CFI\_196/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/32c1322c-c488-4bf7-b67a-1587bb7b29a3.pdf); [UPC\_CFI\_665/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/c3af21e5-bf6c-4adf-bfe4-8ef9474376a2.pdf)

***Patent invalid***

**Facts**

1. This is an infringement and revocation case with respect to EP 2 403 266.
2. The patent relates to a portable terminal with a display unit (e.g. a cellular phone) and an information processing apparatus (e.g. a TV set) wherein content displayed can be passed between the displays of the devices.
3. The patent was filed on 26 September 2007.
4. Maxell alleges infringement by Samsung’s smartphones and tablets.
5. Maxell filed 31 auxiliary requests.
6. During the interim conference, the JR limited the number of invalidity attacks (5 or 6) and auxiliary requests (10) and stated that, with respect to allegedly late filed FRAND defences and documents, the panel would decide during the hearing if necessary.

**The Court**

1. The Court defines the object of the invention: to transfer more smoothly content display between a (practically speaking) mobile phone and a TV.
2. The Court repeats that a skilled person is a notional entity that cannot be equated with any real person.
3. The Court interprets the features of claim 1, stating, among others, that a functional definition may be implemented by the same hardware or software components, as long as that component performs the claimed functions of each unit and these functions can be identified separately.
4. The defendant’s broad interpretation of feature 1.5.2 is rejected.
5. With respect to the claim features 1.5.3.2, the claimant’s broad interpretation is rejected.
6. The Court concludes that claim 1 and 8 are not new over D1.
7. With respect to the auxiliary requests (which, according to the defendants, contain added matter and lack inventive step), the Court refers (among other things) to a decision of the Local Division of The Hague, which held:
    
    *“in the absence of any functional interdependencies that establish a synergistic effect, a plurality of routine modifications that the skilled person would each take as a next step and as a matter of routine, amount to a mere aggregation of features that is obvious”.*
8. The Court considers the auxiliary requests either not inventive or to contain added matter and concludes that the patent is invalid. It dismisses the infringement claim and orders Samsung to pay the agreed costs.

**Comment**

1. A reminder that there is no real skilled person, but rather a notional skilled person. So you can never offer evidence from a real skilled person as such, but only evidence as to who that notional person is, what knowledge that notional person would have, and/or what that notional person would do when confronted with a technical problem. Such evidence is mostly given by persons who are clearly (far) more qualified than the notional skilled person! The question is: how valuable is such expert evidence?
2. The way I understand the decision of the Local Division of The Hague, with which Munich agrees, is that if the realistic starting point requires modifications in order to arrive at the patented invention, there is no inventive step if such modifications each are routine steps. Thus, the (large) number of routine steps does not make the patent inventive unless the various routine steps together lead to an (not expected) synergetic effect.

#### **23 September 2026**
**Local Division Brussels, 2Seventy Bio and NIH intervener v Johnson & Johnson**

[UPC\_CFI\_029/203236; UPC\_CFI\_1934/2026; UPC\_CFI\_1940/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/a12b62e1-04e9-48d8-bc82-37af3e46ee98.pdf)

***Entitlement***

**Facts**

1. Defendants filed an application to produce evidence, basically seeking evidence about how the invention was made and who were the inventors.
2. In response, NIH requested to be considered a co-claimant and dismiss the request.
3. The Court noted two legal issues:
    1. it seems clear that in the revocation action the NIH (the patentee) is a defendant but what does that mean for its position in the infringement case;
    2. how does the unitary effect obtained by patent impact the entitlement question. R. 8.5(c) RoP states that the person stated in the European Patent Register shall be considered the proprietor which can rebutted by evidence, while R. 8.4 RoP states that a person shown in the Register for Unitary Patent Protection as the proprietor shall be treated as such.

**The Court**

1. Referring to UPC\_CoA\_70/2025, the Court holds that an intervener can only support the party and cannot file its own demands.
2. NIH is, as a patentee, defendant in the revocation action but that does not mean that they would become a co-plaintiff in the infringement case.
3. With respect to the applications for producing evidence the Court defines the following conditions:
    
    Condition 1: The claims made on which the R. 190 RoP procedure are based should be “plausible”. 
    
    Condition 2: The Defendants must have presented evidence “reasonably available” in support of the plausibility of its claims (Limbs (a) and (b)). This main condition should be assessed together with the following sub-conditions:
    
    Condition 2(a): The claims made under Limbs (a) and (b) should be specified and substantiated and as such are not speculative.
    
    Condition 2(b): The Court should assess the strict necessity (in the sense of “relevance”) of the production of requested evidence for the further assessment of Limbs (a) and (b). 
    
    Condition 3: The requested evidence must (a) be “specified” and (b) lie in the control of the other party; 
    
    Condition 4. The Court must ensure a fair balance between competing rights, including the protection of the other party’s confidential information, trade secrets and personal data; 
    
    Condition 5. An order to produce evidence must satisfy the requirements of proportionality, equity, and fairness, assessing the following sub-conditions: 
    
    Condition 5(a): The timing of the application (as a whole) should meet the condition of “proportionality, equity, and fairness” (taking into consideration the stage of the proceedings). Part of this assessment demands the assessment whether the applications (and subsequent grant) may not give rise to unnecessary procedural dispersion or delay and whether the requested evidence cannot be reasonably obtained by the Defendants through less burdensome means. 
    
    Condition 5(b): Each individual request which met the above conditions should meet the condition of “proportionality, equity, and fairness”
4. The Court decides that R 8.4 RoP and R. 8.5(c) RoP do not mean that you cannot bring a defence that the patentee is not entitled to the patent.
5. The Court holds that defendants have not sufficiently substantiated the plausibility of their claim that NIH is not entitled to the patent and dismisses the request.

**Comment**

1. R. 8.4 RoP states with respect to the unitary patent that for the purpose of proceedings the person shown in the unitary patent register as the proprietor will be treated as such.
2. R.8.5 (c) RoP states for a European patent that the person who is registered as proprietor is presumed to be the proprietor which presumption can be rebutted.
3. The Court considered that both R. 8.4 RoP and R. 8.5.1 RoP in fact mean the same. In both cases, the registered owner should be considered the proprietor, unless the defence shows that this is not the case. The Court holds that the defendants have not been able to make this plausible and refuses to grant the request to order claimant to provide evidence.
4. I find it somewhat strange that a third party can challenge the entitlement to a European patent or unitary patent with respect to the registered proprietor. Art. 138 of the European Patent Convention specifies that only the true inventor who is entitled to the patent can challenge the ownership of the patent. He is the only one who can file entitlement proceedings or file for invalidity proceedings. Maybe R.8.4 RoP and R. 8.5(c) RoP should express the same.
5. Art. 47(4) UPCA states that the patent proprietor shall be entitled to join the action. In my view, it is not necessary to do that by intervention. NIH in my opinion could have joined the infringement action on the basis of this article without an intervention claim.

**– 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 –**