UPC Unfiltered, by Willem Hoyng – UPC decisions week 25, 2026

22 April 2026 (late published)
Local Division Milan, Sigma v Chimica

UPC_CFI_2052/2025 

Stay of proceedings

Facts

The parties in this case request a stay.

The Judge-Rapporteur (“JR”) 

The JR grants the stay referring to Art. 43 and Art. 76(1) of the UPC Agreement and R. 295.1(d) of the Rules of Procedure.

Comment

1. Why is this order of 22 April 2026 published only last week?
2. Article 43 UPCA: the Court shall actively manage “without impairing the freedom of the parties to determine the subject matter of, and the supporting evidence for, their case”.
   Article 76 UPCA: “The Court shall decide in accordance with the requests submitted by the parties and shall not award more than is requested.”
3. These articles do not mean that a request by (all) the parties to stay has to be granted. First of all, such a request does not concern this subject matter or the supporting evidence of proceedings, and finally, Article 76 UPCA does of course not mean that the Court has to grant each request.
4. R. 295.1(d) RoP states that “the Court may stay proceedings at the joint request of the parties”. This means that the Court has discretion and, although in many situations such a request makes sense, it is clear that it should in principle not interfere with the aim of the UPC to decide cases in 12-14 months. 

27 April 2026 (late published)
Local Division Milan, Cardo Systems v Shenzhen Ziwu Chuangxin Technology

UPC_CFI_1902/2025 

Serving of Statement of Claim on Chinese defendants

Facts

1. The claimant looks for an efficient way to serve the Statement of Claim on Chinese defendants.
2. The claimant asks to be allowed to serve on the UPC Representatives of the defendant in another case.

The Court

1. The Court of Appeal has repeatedly stated that, before any other method becomes relevant, you first have to serve by any method provided for in the The Hague Convention.
2. The service of one of the Chinese defendants is underway.
3. The Hong Kong documents did not contain China as country, and were returned but have now been properly addressed and resent.
4. In general, processing in China takes four months.
5. These 4 months have not passed, so the request is untimely and has to be rejected.

Comment

1. According to the The Hague Convention, Article 15(1)(b),  you can proceed with the case if 6 months have lapsed since the documents have been transmitted and the Registry has done every reasonable effort to obtain the certificate through the competent authorities of the state addressed. 
2. For preliminary injunctions (Article 15(3) of the The Hague Convention), the only requirement is urgency.
3. In the requirement of “every reasonable effort” lies another reason why not the Registry but the claimant should take care of service. 

18 May 2026 (late published)
Local Division Mannheim, Bardehle Pagenberg v Ericsson

UPC_CFI_1026/2026 

Withdrawal

Facts

1. The applicant filed a request for access to pleadings and evidence stating that their client concluded a global license agreement (“GPLA”) with Ericsson.
2. Ericsson had informed his client that the GPLA was going to be produced under a confidentiality regime in the proceedings with Verifone.
3. It wanted to check for its client if the GPLA was sufficiently protected.
4. The Judge-Rapporteur (“JR”) informed the claimant that he would not issue such an order if Ericsson fails to inform a third party about the fact that it is going to produce the agreement between Ericsson and that third party in the proceedings.  
5. Ericsson pointed out that no information regarding any agreement with their licensees has been submitted in the proceedings yet.
6. Claimant withdrew its requests.

The JR

1. If R. 265 RoP is to be applied, the withdrawal is permitted because the claimant and the defendant have not raised objections.
2. Only in exceptional cases, costs are awarded with respect to inspection orders.

Comment

1. A simple call or email to Ericsson’s UPC representative would have had the same result?
2. I agree with the JR that an inspection order is not the way to check if a party to a license agreement did not violate the confidentiality agreed between the parties to the agreement. This should be resolved between these parties and not via a public inspection order, which does not exist for the purpose of obtaining evidence of a possible breach of contract.

1 June 2026 (late published)
Local Division Paris, Keeex v Adobe

UPC_CFI_530/2025

Infringement action

Facts

1. Keeex wanted a provisional payment of damages of € 120 million.
2. The JR held that Keeex’s provisional damages request was admissible.
3. Adobe asked for a review by the panel.

The Court

1. The request was admissible and not late as initially Keeex asked to establish the damages in the main proceedings and only during the interim conference accepted to have damages established in damage proceedings. However, it explicitly reserved the right to ask for a provisional amount.
2. Nothing justifies a dismissal based on R. 334(k) RoP because Keeex had provided several pages of reasons why such advance was justified. 
3. The Court also dismissed the argument that the demanded amount (€ 120 million) is such that this is no longer considered to be provisional. According to the Court it is not only the sum demanded that determines whether or not a provisional award is justified, and € 120 million is not significant compared to the main claim which is for damages amounting to over € 7 billion.
4. The Court dismissed the review request.

Comment

R. 119 RoP makes it explicitly possible to award an interim amount of damages. The Court can also decide on the definite damages in the main proceedings but apparently during the interim conference the Court tried to avoid to have to make a definitive ruling. It is true that if it is complicated to do so, it may be preferable not to do so, as appeal proceedings may have a different view on the merit of the case which would make the work on the establishment of damages unnecessary. Furthermore, parties confronted with the final decision (or even after first instance) may try to settle. In complicated cases the Court may even suggest, or parties may consider, having the damages established via mediation or arbitration by the PMAC.

12 June 2026 (late published)
Local Division The Hague, GSK v Moderna

UPC_CFI_616/2025; UPC_ CFI_1439/2025

Result interim conference

Facts

1. Order (R. 105.5 RoP) after the interim conference.
2. The interim conference lasted two hours.
3. Not only the JR attended but also the TQJ and the (foreign) LQJ Schilling.
4. Before the interim conference, the Court and the parties had suggested which subjects they wanted to be raised.
5. All issues were addressed and the JR stated that her objective was to streamline, prepare and focus the proceedings for the oral hearing.

The JR

1. As for the streamlining: the JR and the TQJ provided some guidance and preliminary views on the crucial issues.
2. With respect to the infringement of feature 1.3: the Court provisionally did not see any literal infringement. The Court suggested to the parties to address infringement by equivalence and the possible role of the file wrapper.
3. Limiting the invalidity attacks and the Auxiliary Requests does not mean that they cannot be invoked on appeal as they are on file.
4. The parties will inform if the counterclaim for revocation is conditional.
5. The JR made it clear that the experts will not be summoned for cross examination but that they should be available to answer questions. If they are unable to answer questions, the Court may draw conclusions from it.
6. GSK has to file a formal request to have stenographers present during the hearing.
7. Parties have to indicate their most promising invalidity attacks (five is considered (just) manageable) and a list of auxiliary requests on which it wants to rely (five to ten). 
8. The JR decided on the late filed exhibits and arguments by not accepting the late infringement arguments.
9. The JR set a time schedule for the oral argument.
10. Parties are urged to agree on the costs. If not, they have to file a cost overview two days before the oral argument planned on 1 September 2026.

Comment 

1. I recommend that all representatives litigating in The Hague, as well as all UPC judges to read this order, as it reflects in my opinion the way the drafters of the UPCA and Rules imagined the interim conference. 
   I will mention a few key issues.
   1. An interim conference is not held very close to the oral hearing, but preferably a few months before the oral hearing.
   2. The TQJ is present if technical matters are discussed.
   3. A preliminary indication can be given of the view of the Court with respect to certain arguments.
   4. The JR can force parties to formulate their best attacks and auxiliary requests in order to get a manageable case.
   5. Without good and convincing reasons there is no formal cross examination of party experts. The expert should, however, be available for questions and are reminded of their duty to the Court.
   6. In the event that the defendant raises a counterclaim for revocation for non-infringement reasons, the aim is to prompt them to make that counterclaim conditional, so the Court does not have to deal with it in case it finds no infringement.  
   7. The JR can force parties to settle about costs and otherwise avoid cost proceedings by stating that the parties have to report their costs before the oral argument so that the Court can also try to have the parties agree during the oral argument or even decide costs in the decisions.
   8. The JR sets the value of the litigation (so that the parties also know the ceiling for recoverable costs).
   9. The JR sets a time schedule for the oral hearing.
2. The JR did not decide on the stenographic transcript. Ideally both parties would request this and pay for it! However, it would not become a formal document in the proceedings. The tape remains the official record (for appeal). However, I see no problem if they also send it to the Court. In practice it is clear that listening to a tape (and finding the part one is looking for) is time consuming.
3. The Local Division in The Hague has also no problem to accept pleading notes (as long as they reflect what is argued). The Rules may also require some reworking on this point in order to make the task for the judges less time consuming.
4. As to a stenographer for one party, I do not see what is against that as the hearing is public and why would one not be allowed to take notes? The condition should be that such stenographic records should not be used in public or other proceedings without clearly mentioning that it is the account of a party and that the official record is the tape. 
5. Ideally, the technology would automatically put the spoken words in writing and the parties and the Court would get a copy!

12 June 2026 (late published)
Local Division Mannheim, Irdeto v DJI Europe

UPC_CFI_344/2025; UPC_ CFI_735/2025

Infringement proceedings

Facts

1. Infringement proceedings based on EP 2 831 787 started on 15 April 2025.
2. The case has been separated from the case against the Chinese mother company because service was complicated. 
3. The defendant filed its defence and a counterclaim for revocation.
4. The auxiliary requests of the claimant were found inadmissible.

The Court

1. The Court discusses the patent and interprets certain claim features by applying the Court of Appeal’s decision in Nanostring v 10x Genomics (UPC_CoA_335/2023) and pointing out that the claims are broader than the examples in the description!
2. The Court rules that there is no added matter and remarks with respect to sufficiency of disclosure: “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. Where a claim contains one or more functional features, it is not required that the disclosure includes specific instructions as to how each and every conceivable embodiment within the functional definition(s) should be obtained. A fair protection requires that variants of specifically disclosed embodiments that are equally suitable to achieve the same effect, which could not have been envisaged without the invention, should also be protected by the claim. Consequently, any non-availability of some embodiments of a functionally defined claim is immaterial to sufficiency, as long as the skilled person through the disclosure is able to obtain suitable embodiments within the scope of the claim. The burden of presentation and proof lies with the party invoking invalidity of the patent (cf. Court of Appeal, decision of 25 November 2025, UPC_CoA_528/2024, paras. 105 et seqq. -Amgen v. Sanofi).” 
3. The claims are held novel and inventive applying the criteria set by the Court of Appeal (Meril/Edwards; UPC_CoA_528/2024, UPC_CoA_464/2024).
4. As for infringement, the claimant claimed that the drones as well as the remote controllers infringe the patent.
5. The Court concludes that the patent is not infringed.

Comment

1. The defendants now lost the revocation action. Would it not have been better to make that request conditional? This would clearly qualify the revocation as an extra step for your infringement defence. If you win the infringement action and you have made the revocation claim conditional, you should not, in my opinion, be liable for the revocation costs..
2. The parties had agreed on a flat amount of reimbursable costs for the total proceedings leaving it to the Court to apply the win/loss ratio in the infringement and in revocation proceedings. In my view, this percentage game (from national German proceedings) is not necessary: the winner takes all. In this case this means that parties bear their own costs as one wins the infringement and one the revocation. This is also what the Court decided. The Court points out that  there may be a difference in the ceiling of the recoverable costs because of the difference in value of the litigation. A reasonable interpretation of the parties’ agreement seems to be that they value both the infringement and invalidity at 50%. Otherwise they would have agreed on a different weighing. So in the end the parties and the Court came to a very practical solution. Bravo!

15 June 2026 
Local Division Brussels, 2seventy bio Inc, Johnson & Johnson

UPC_CFI_29/2026; UPC_CFI_1934/2026; UPC_CFI_1940/2026

Publication of orders

This order was first published on 8 June 2026 but it disappeared from the published decisions after a few hours. However, before it disappeared we had read it and we published it with comments in the Unfiltered of week 24. Now the order has reappeared with a new date.

Question 1:  

Is it possible to withdraw orders and to give them a new date without any explanation?

Question 2:

Do we really have to publish this kind of order?

For the past three years we have seen a rather erratic way of publishing with decisions being published long after they were announced, but still published among decisions of the same date. I have suggested several times to change this policy and to at least make it clear every week what is published late, but that has not rendered effect so far. We now use a software script to track late-published decisions, to ensure that we do not miss an order or decision. If you do not want to miss a late publication, you can either read or listen to “Unfiltered”, or you can scroll through the decisions of the last months every week to see if a new decision has been published late. 

15 June 2026
Local Division The Hague, Ericsson v Shenzen

UPC_ CFI_1568/2025 

Leave for appeal

Facts

1. On 28 May 2026, the defendants filed a request for leave for appeal of an order of the Judge-Rapporteur (“JR”) with respect to R. 202 RoP of 13 May 2026, in which the JR decided to refer the decision with respect to a preliminary objection to the main proceedings.
2. A second request for leave for appeal of an order with respect to the confidentiality regime was filed on the last day of a 15-day period. 

The JR

1. The JR questions whether the request is filed timely.
2. If filed timely, the request with respect to the PO is denied for the reasons already explained in the order.
3. Leave for appeal is granted with respect to the order about the confidentiality regime.

Comment

1. The JR concluded from a decision of the Court of Appeal that if no leave for appeal by the Local Division is given during 15 days after an order, this had to be considered as a refusal that the period for asking leave for appeal is 15 days.
2. R. 221.1 RoP states that an order can be appealed if leave for appeal is granted within 15 days of the service of the order. 
3. It is logical that the Court of Appeal has decided that if leave has been requested but not granted before the expiry, this has to be seen as a refusal, as R. 222.1 RoP is clear, and in that case no leave has been obtained during the two weeks.
4. The problem, as rightly noted by the JR, is that it is not clear why a request for leave should be made. That term should be considerably shorter than 15 days to give the Court of First Instance the possibility to rule.
5. Because filing 5 minutes before the end of the 15-days period would be possible, then in fact it would always be the Court of Appeal which has to decide (because no leave is granted by the CFI within 15 days). This is not the intention of the Rules and leads to unnecessary work for the Court of Appeal, which has not issued the order in first instance and would therefore have to study it while the Court of First Instance knows its own order. 
6. Already before the order is issued, a party can ask to state in the order that leave for appeal is granted.
7. A reasonable interpretation of R. 220.2 RoP suggests therefore that the Court of First Instance should get a reasonable time to be able to decide a request for leave for appeal, and therefore a party should file a request at the latest 7 days after the service of the order. If filed later, the request should be held inadmissible. It is up to the Court of Appeal to decide about this point.  
8. When the Rules are revised, this should certainly be included in R. 220.2 RoP.

16 June 2026
Local Division Paris, Shark Ninja v SEB

UPC_CFI_1599/2026

Stay cost proceedings

Facts

1. On 10 April 2026 the Paris Local Division dismissed the application for a preliminary injunction (“PI”) by Shark Ninja.
2. Shark Ninja appealed.
3. SEB filed cost proceedings on 10 May 2026.
4. The JR asked the parties to submit comments on a possible stay.
5. SEB asked for a stay. Shark Ninja agreed.

The JR

Stays the cost proceedings until the outcome of the appeal.

Comment

1. This is a good move of the JR. It does not make sense to deal with costs before the outcome in appeal, especially since an interim amount of € 120.000 was already awarded to SEB.
2. As I said before, I hope that the simplification of costs will be given serious consideration when the Rules are revised (see my previous suggestions). 

16 Juni 2026
Local Division Mannheim, InterDigital v Walt Disney

UPC_ CFI_86/2025; UPC_CFI_490/2025

Infringement (SEP) decision

Facts

1. InterDigital sued Disney for video encoding and decoding.
2. Disney made its films available in various bitstream formats, including one that uses the HEVC standard.
3. A FRAND licensing declaration was submitted for the patent to the ITU, the relevant standardization organization.
4. Claimant is of the opinion that claims 1 and 15 of the patent do not fall under the scope of the HEVC standard.
5. Claimant offered in 2020 a license agreement to Disney.
6. Disney considered the conditions not to be FRAND.
7. Claimant stated that this was not necessary as the use of the standard was not necessary.
8. Defendant filed a counterclaim for revocation.
9. Claimant filed 13 auxiliary requests.

The Court

1. The Court accepts jurisdiction based on Art. 7(2) jo. Art. 71b(1) of the Brussels Ibis Regulation (“BR”) for all UPC countries where the patent is validated.
2. The Court discusses the patent and formulates the objective of the patent (“an improved and more flexible method for intra chroma coding”). 
3. The Court interprets the elements of the claim after citing the known principles of the Court of Appeal’s decision in Nanostring v 10x Genomics (UPC_CoA_335/2023) and stating “patent specifications constitute their own lexicon in terms of the technology used therein”. 
4. The Court rejects the argument of the defendant based on the prosecution history, leaving open if the prosecution history can be used for claim interpretation. The Court also rejects the other arguments with respect to a narrow claim interpretation..
5. The revocation action based on “added subject matter”, “novelty” and “inventive step” is dismissed.
6. The Court cites the legal principles to be applied for each of the attacks before it dismisses all the arguments. It specifically holds that it does not have to deal with the question if the (many) new arguments raised by the defendants during the oral hearing are admissible. 
7. The Court concludes that the patent has been infringed and that an injunction can be granted, as the defendants have not presented any facts that could support the argument that a permanent injunction would be disproportionate.
8. The defendant has submitted a timely confidentiality request regarding the information they must provide to the claimant. The defendant can apply for this when it delivers the information, as this is the most efficient way. Although already this is implicit, the Court will also order that the information can only be used to calculate  damages.
9. The Court accepts “for the sake of argument” that the defendant can raise a FRAND defence although defendants did not define the relevant market nor submitted evidence that claimant had a dominant position in that market. The defendant also did not give any arguments as to why Huawei v ZTE would also be applicable for a de facto standard situation.
10. Although irrelevant for the case, the Court stated what a “dominant position” means. The Court also stated that even in a situation of a de iure standard where a FRAND declaration is given, the question can be raised as to whether it is necessary for the implementer to prove that the patentee has a dominant position.
11. As for a “de facto standard”, the Court remarks “However, the mere fact that the implementor loses certain technical advantages, if it is not allowed to make use of the technical teaching of the patent, is a common situation where the claimed invention actually improves the prior art, and is not in itself sufficient for conferring a dominant position the licensing market for the patent holder.”
12. The Court describes the negotiating process as indicated by the Court of Justice of the European Union (“CJEU”) in Huawei v /ZTE, emphasizing that the SEP holder’s offer should be considered first and that unwillingness cannot be inferred solely from  the patent user’s conduct. If the SEP owner’s offer is not found to be FRAND, no injunction will be granted. The Court then adds “Accordingly, any assertions that injunctions would be granted de facto without examination and in continuation of an alleged ‘German Court practice’ are unfounded and not based on supported data”.  
13. The Court also considered the defendant an unwilling licensee because they did not want to disclose the license negotiations when the claimant asked them to lift the NDA covering these negotiations.
14. The defendants have not substantiated that they would lose € 500 million a year in case of an injunction. On the contrary, they themselves stated that they have implemented a work around.
15. Given the financial status of the claimant, the Court ordered a security of € 8 million as a condition for enforcement. 

Comment

1. First of all, when reading this case, what will immediately strike you is that the defendant made many arguments only during the oral hearing. The Court dealt with all these arguments and rejected them. However, it would be clearly wrong to understand this as meaning that that raising new arguments during the oral hearing is possible. The Court clearly states that it leaves aside whether or not this is allowed. I would have preferred the Court to have clearly stated that this is not acceptable in UPC proceedings, to not encourage representatives to continue with their national practices. 
2. The interesting part of the decision are the obiter dicta with respect to FRAND. The decision with respect to infringement and validity is rather straightforward and convincingly motivated.
3. As to FRAND, the most interesting sentence is quoted above at 12. The way I read this sentence is that in the UPC (as far as the Local Division of Mannheim is concerned) the national (alleged) German Court practice will not be applied. 
4. This “German Court practice” is what implementers summarize as follows: in a German court, a FRAND defence is never successful. You always end up with a pistol against your head: an injunction.
5. One of the causes is that, allegedly, the German court does in fact not look at the offer of the SEP holder but only at the implementer’s behavior and counteroffer. In this decision, the Local Division Mannheim states that, according to Huawei v ZTE, you also have to look at the offer of the SEP holder. The SEP holder has to make a FRAND offer and has to explain the reasons why that offer is FRAND. Indeed, that seems to me what is stated in Huawei v ZTE. 
6. However, this does not mean that the outlook for implementers is now all looking better.
7. The Court states that the defendant did not prove that the patentee had a dominant position. I realize that, in Huawei v ZTE, the fact that the patentee had a dominant position was not in dispute. However, in a situation where the SEP holder has given a FRAND declaration, it seems to me not necessary for the implementer to establish that the SEP holder has a dominant position if you base your defence on the FRAND declaration.
8. A further point is that the Court states that it has not been decided by the CJEU that Huawei v ZTE is applicable to a de facto essential patent. That is correct, but I cannot see why the same rules are not applicable to a (true) de facto essential patent. I say “true” because in this case the defendant itself said that it simply continued with its streaming service by use of a “work around” and did not (as the Court rightly remarks) argue that it lost subscribers by doing so. The claim that an injunction would cost € 500 million was also unsubstantiated. It is clear that with that kind of defences you are not going to convince the Court that the patent is de facto essential or that an injunction is not proportionate.
9. The defendant followed the Court of Appeal’s guidance on the confidentiality of the information that the claimant wanted to obtain if the claimant was successful, and raised this in the proceedings on the merits. The Court came up with a practical solution, meaning that it would only have to deal with it if the content of the information was known.  
10. The way I understand the decision is that, the defendant will comply with the order by submitting the requested information to the claimant within the stated period (here six weeks), while also indicating that it has filed a reasoned request for protection of confidential information. The Court also made explicit that the information could only be used for what it was intended for: the calculation of damages. These are both useful additions to standard orders, and it would be useful if they were followed by other Divisions.
11. Finally: if you are interested in the law with respect to standard essential patents after having read my comments hereabove; read the decision after paragraph 205 in which the Court even refers to the relevant chapter in the Benkard handbook, which is cowritten by its President! Unfortunately if you only took English as a (second) language in school, it is not suitable for you because this (excellent) handbook is only written in German. So my advice to the UPC is that, if you want to refer to a handbook or an article, you should refer to an English publication that is accessible to all the users of the system. However, I generally do not think such references are necessary. A good decision of the UPC does not become more authoritative by someone having the same view. The truly authoritative voice is the Court of Appeal (and, of course, the CJEU). 

17 June 2026
Local Division Milan, Ericsson v Asustek

UPC_CFI_1129/2026; UPC_ CFI_1130/2026

PI during merit proceedings

Facts

1. Ericsson started a SEP case against Asustek on 14 July 2024.
2. Ericsson filed the present PI proceedings citing:
   1. the delay of the main proceedings;
   2. two recent German decisions on the basis of which Asustek withdrew from the German market;
   3. the introduction of new products by Asustek.

The Court

1. The Court ruled that it was not possible to apply for a provisional injunction in the case on the merits. Such a request should be made in separate Preliminary Injunction (“PI”) proceedings, for which a court fee for such proceedings must be paid.
2. The Court gave an exhaustive overview of all the case law with respect to the criteria for obtaining a PI.
3. In essence, the Court concluded that, for a PI in main proceedings, it is necessary to establish that new facts, which were not known at the start of the main proceedings, make it unreasonable to await the outcome of the main proceedings. 
4. The Court discussed the delay of the proceedings in detail, concluding it was mainly caused by acts of the claimant (and the defendant), such as:
   1. alignment of the date for the Statement of Defence;
   2. insistence on an eyes only regime with respect to confidential information and a lack of filing of such information (license agreements) until the appeal was decided (in January 2026);
   3. bankruptcy of one of the defendants;
   4. granted requests by both parties for extensions;
   5. non availability of parties on the proposed dates for an oral hearing.
5. The delay therefor was not caused by inactivity of the Court.
6. The German decisions were not final and also did not show that Asustek would not pay damages, as no order to pay damages was issued in these proceedings.
7. During the main proceedings Asustek continuously launched new products, to which Ericsson did not respond with a PI application.
8. The Court does not believe that the UPC allows it to grant Ericsson’s alternative request. Ericsson had asked the Court to order Asustek to provide a security for the damages.

Comment

1. The Court is correct in stating that a (separate) PI application is required to obtain a preliminary injunction. R. 265 RoP (“provisional measures”) seems clear on this point. The Rules governing provisional measures apply to requests made both prior to and during the case on the merits.
2. The Court is also right to rule that for such a request during main proceedings special attention is required with respect to urgency and necessity, and that there have to be convincing reasons why, after the start of proceedings on the merit, it would suddenly not be possible to await the outcome of the proceedings on the merit.
3. I think the Court in Milan gives a good explanation as to why they are not to blame for the delays. Indeed, I believe that the cause of the delay (assuming the Court delivers its judgment 6 weeks after the oral hearing, the delay will be about 10 months) lies mostly in the special circumstances of the case (it is the first time the Court of Appeal has ruled on a ‘counsel eyes only’ regime/bankruptcy of a defendant) and the attitude of the parties involved.
4. That said, I think that, in general, a Court should be less accommodating. In the UPC, it is the Court that sets the pace, not the parties. In this case, for instance, the claimant refused to file license agreements and even a report by a neutral expert explaining why their offer was FRAND without an ‘counsel eyes only’ regime. I think that the Court should not have allowed this attitude and should not have awaited the appeal decision on the ‘counsel eyes only’ regime. I am also against granting delays because both parties request it, although, in the rather special circumstances of this case, it was understandable. 
5. We have to understand that not only representatives but also judges have to get used to the UPC system. The time for being nice and accommodating to the parties and for delaying giving judgment for a year or more, as we see in the Dutch national practice, is over. 
6. However, contrary to what the action of the claimant suggests, blaming the Local Division Milan for the delay was certainly not justified. 
7. Unlike the Court, I do not see any problem with asking, as the claimant did in the provisional measures proceedings, for an order to give security for the damages caused by the continued alleged infringement. However, the conditions for provisional measures must be fulfilled. R. 211 RoP makes clear that the orders listed under 1 are just examples. (“The Court may in particular order the following provisional measures.”) So any other order is possible.

17 June 2026
Court of Appeal, Fives v Reel

UPC_ CFI_42/2026 

Confidentiality on appeal

Facts

1. In relation to alleged infringement of EP 1 740 740, Fives requests damages in the form of lost profits.
2. LD Hamburg dismissed the request, because Fives did not prove that it had suffered lost profits because of the infringement.
3. On 29 July 2025, the Local Division issued a confidentiality order with a limited number of persons who would have access.
4. On 17 March 2026, Fives appealed again the dismissal.
5. On 11 June 2026 Fives filed its grounds for appeal which contained a confidentiality request based on R. 262.A RoP and R. 262.2 RoP with respect to newly filed documents.

The Judge-Rapporteur (“JR”) 

The JR granted the access only to the UPC Representative of Reel until a definite decision with respect to the confidentiality request and giving the UPC Representatives 5 days to react to the request.

Comment

Note: this is about documents which have been filed for the first time. For documents for which confidentiality was ordered in first instance, the confidentiality regime remains in place. There is also no decision (yet) if the new documents are accepted in the appeal proceedings!

17 June 2026
Local Division The Hague, GSK v Pfizer

UPC_CFI_620/2025; UPC_ CFI_1509/2025; UPC_ CFI_1511/2025 

Interim conference

Facts

1. This concerns an infringement case against 21 defendants.
2. An interim conference was held by the Judge-Rapporteur (“JR”) with the Technically Qualified Judge (“TQJ”) present.
3. Topics for the interim conference were suggested before the interim conference by the parties.

The JR

The JR of the Local Division in The Hague did the now usual housekeeping:

1. Two identical counterclaims shall be considered as one but no recovery of court fees.
2. The parties are to pick their best validity attacks (5) and auxiliary requests (5-10).
3. The parties are asked to consider to make counterclaim conditional. 
4. The parties are asked to agree on costs or otherwise have to produce cost specification before the oral hearing.
5. The JR decided most outstanding requests, among other thing  about late filed documents. 
6. There will be no cross examination, but experts are supposed to attend the hearing.
7. Stenographers (requested by both parties) can attend.
8. Value of the litigation was set for each claim and counterclaim (the two combined counterclaims) on € 50.000.001,00.
9. A time schedule is set for the oral hearing.
10. Powerpoint presentations without new information are allowed but have to be sent to the Court at least 24 hours before the hearing; Dutch style pleading notes (no legal status) are allowed.

Comment

As stated before, this is the way a timely interim conference is intended in the Rules. It makes it possible to deal with a complicated case in an efficient way during a one day oral hearing. 

18 June 2026
Court of Appeal, Occlutech v Lepu

UPC_CoA_907/2025

CoA grants PI

Facts

1. The Local Division Düsseldorf dismissed the application for a Preliminary Injunction (“PI”) because claim 1 of EP 1 998 686 for an occlusion device required a braiding of multiple wires and it could not establish with enough certainty if the attacked devices consisted of more than one wire.
2. Occlutech appealed.
3. Lepu added in its response new invalidity arguments but did not appear during oral argument.

The Court of Appeal

1. The Court will treat Lepu (absent during the oral hearing) as only relying on their written arguments.
2. The new arguments could have been made earlier and would now prejudice the Occlutech defence. The absence during the hearing prevented the Court also from raising questions, so the new revocation arguments were not admitted. 
3. The Court of Appeal agrees with the LD with respect to validity, the skilled person and the claim construction.
4. Lepu has now stated that, during the manufacturing process, one wire is cut into multiple wires, which means that there is literal infringement.
5. The decision by the LD Düsseldorf is reversed. The injunction granted.

Comments

1. In first instance Occlutech did not have their act together in the sense that they could apparently not convincingly make clear to the Court that Lepu’s argument that they use one wire was misleading, given that they started with one wire but cut it up into different wires.
2. Not appearing at the oral hearing suggested that Lepu no longer believed in their case, and also meant that the Court of Appeal would not consider the new invalidity arguments. Even if Lepu would have shown up, this would not have helped, as they filed the new facts and arguments far too late. 
3. Representatives should not read this decision as a possibility to submit new facts and evidence on appeal to prove infringement, if in first instance, you fail to provide sufficient facts and evidence to demonstrate infringement. What is possible is, based on the facts and evidence brought in first instance, to argue that the Local Division came to the wrong conclusion and to provide reasons why this conclusion was wrong also in the light of the response of the defendant in appeal. However, as was also seen in this case with respect to the new revocation arguments a whole new infringement reasoning (for example, invoking with new facts and a new reasoning the doctrine of equivalence for the first time) seems to cross the line of what is acceptable. There will always be some discretion on the part of the Court of Appeal, but it is better to make sure that you present all your possible facts and arguments in first instance.  

18 June 2026
Local Division Milan, Cardo Systems v Shenzhen Ziwu Chuangxin Technology

UPC_CFI_1382/2025 

Revision ex parte PI

Facts

1. The Local Division had issued an ex parte preliminary injunction and an order to seize the infringing products and the promotional materials which would be exhibited during an exhibition. The order was given on 5 November 2025.
2. The defendants had entered the European market in September 2025.
3. On 5 December 2025, the defendant filed for a review of the order arguing:
   1. the patent is invalid because of added matter and lack of inventive step;
   2. the patent is not infringed;
   3. the balance of interest weighs in their favor;
   4. releasing of the security which had been posted by the claimant for the enforcement of the ex parte PI to the defendant because of the costs and damages suffered by the defendant. 

The Court

1. The Court cited the principles for granting a preliminary injunction (“PI”). The prima facie analysis “is it more likely than not that the patent is infringed/is invalid” does not apply for the assessment of jurisdiction, urgency and the weighing of interests. If one of these three is not fulfilled, the Court does not have to do the prima facie analysis.
2. During review proceedings, the respondents must have the possibility to raise all arguments against the injunction, including circumstances arisen after the ex parte injunction was ordered which are important for weighing the interests of the parties.
3. However, an ex tunc perspective (the situation at the time the PI was granted) retains its function when dealing with the question of urgency. The same is true with respect to the applicant misrepresenting the facts when asking for an ex parte PI.
4. Damages caused by the way the enforcement has taken place falls under the scope of R. 213.2 RoP and can be awarded during the review proceedings. 
5. The Court considers that it is more likely than not that the patent is not infringed, also not by way of equivalence.
6. The Court, while recognizing that the Rules of Procedure are silent, awarded an interim award of costs, at half of the available ceiling. 
7. The Court considers that there is not any concrete evidence about reputational damage due to the way the seizure was carried out.
8. The Court awarded € 28.000 as interim award of costs, which would be paid out of the security put up by the applicant for the ex parte PI. 

Comment

1. If the infringed product is introduced in September. Is it then still possible to get an ex parte injunction in order to carry out the execution during an international exhibition, with the police present etc.? The claimant of course knew that it was very likely that the defendant would exhibit this new product at the most important international exhibition of the year. He waited with his action until the exhibition! 
2. It is clear from the case that during the exhibition, the execution was quite an intimidating and disturbing exercise. Again it is important that judges realize that such seizures (and this time also execution of an ex parte injunction) often have very (also) the objective to disturb the business of the alleged infringer as much as possible. If indeed such measure is justified, then at least state that such measure can only be executed half an hour before the termination of an exhibition day.
3. I think that the Court is right that in review proceedings, the urgency requirement should be judged at the time of the application for the ex parte PI. However, I do not see why this should also not be the case with respect to weighing the interests of the parties. I think that new facts which were not present (and foreseeable) at the time of the request for an ex parte PI should not be taken into consideration in the review proceedings. 
4. Of course, in this case defendant who introduced a new product on the market should (knowing that he was going to exhibit it on this exhibition) at least have filed a protective letter.
5. With respect to not accepting equivalent infringement, the Court refers (also) the requirement “certainty for third parties”. As I have stated before, I am very much against such a rather subjective criterion. In this case that was also not necessary, because although the result and the means were the same or similar, it was clear that the result was obtained in a different way. So equivalence was deemed to fail under the “means function” criterium.
6. The defendant wins the review proceedings. Why can the Court not award the defendant the costs which he has specified but only an interim award? The defendant now has to start separate cost proceedings for the remaining € 28.000. 
7. Furthermore, it is clear that the whole disturbing exercise at the exhibition should not have taken place. Of course, it has a negative impact, if two Italian policemen stay at a booth for a considerable time. Nobody’s first thought is that it is a simple civil intellectual property matter, and not “counterfeit”, “illegal immigrants”, “theft” or “murder”. At least you can award for reputational and commercial damage without asking proof, to the limit € 5.000 ex aequo et bono!

– All comments above are Prof. Hoyng‘s personal opinions –