20 March 2026 (late published)
President of the Court of Appeal, X v the Registrar
Art. 48.3 UPCA - Application too late
Facts
- X, a European patent attorney had successfully followed courses before 31 December 2020 which entitled him to be accepted on the list of representatives.
- However, he should have filed a request before 1 January 2024 according to the E(uropean) P(atent) C(ertificate) rules.
- The Registrar rejected the application.
- X appealed to the President of the Court of Appeal, arguing that he had experienced difficulties with the CMS when filing his application, among others things.
The President of the Court of Appeal
- There is no evidence that X attempted to file the application, and the refusal does not contravene the right to exercise a profession, especially since X can qualify by completing a new accreditation course.
- The President rejects the request for review.
Comment
- It is good that the grandfather clause could only be used for one year, as at the time, the programs leading to the possibility of becoming a UPC representative via the grandfather clause were not regulated and checked, as is the case nowadays.
- However, even today, it would be a mistake to think that after having obtained the litigation certificate or a bar exam you are a competent representative. Practical litigation experience is very important.
22 June 2026 (late published)
Local Division The Hague, Essity v WEPA
Evidentiary seizure
Facts
- The Court granted an ex parte evidentiary seizure based on EP 3 289 139.
- WEPA asked for a revision.
The Court
- The Court states that WEPA’s complaint that its employees would have to answer questions during the seizure is not justified, as the order clearly spells out that the employees do not have to answer.
- WEPA states that the order should have mentioned the TRIPS deadline for starting proceedings. The Court does not agree, as this follows automatically from R. 198.1 RoP and the lawyers who were present could have explained what paragraph 7.15 of the order meant.
- WEPA argues that the patent is invalid and that basing an ex parte evidentiary seizure order on a decision of the OD is insufficient. In principle a granted patent is sufficient. In this case there was a positive decision of the OD. So WEPA’s complaint is not justified, according to the Court.
- WEPA argues that there was no urgency. In general, there is no requirement for urgency, only that there be a risk that the evidence will be destroyed. In this case it was very easy to remove digitally stored evidence. So the order was justified.
- The Court confirms the order.
Comment
- This (may I say) desperate attempt to ensure that the collected evidence could not be used was bound to fail.
- However, you wonder whether it is wise to put in the order that the bailiff can ask questions but that they do not have to be answered if it is true that employees etc. do not have to answer questions. On the other hand, I think there are different types of questions. Questions about where certain evidence can be found on the premises (so reasonable cooperation with the seizure) are different from questions about a production method. With regard to the latter, employees etc. can and should be heard during the litigation if relevant. A completely non-cooperative attitude with respect to the former may lead to negative inferences in the proceedings or other measures to obtain evidence.
30 June 2026 (late published)
Court of Appeal, Xiaomi v Nera
UPC_CoA_854/2025; UPC_CoA_692/2025
Late documents / arguments
Facts
- On 11 April 2024 Nera sued Xiaomi for infringement of EP 2 642 632.
- Xiaomi filed a defence and counterclaim for revocation.
- Nera replied with 66 auxiliary requests.
- The LD maintained the patent according to auxiliary request 2 but dismissed the infringement claim.
- Both parties appealed. Nera did not appeal against the decision to maintain the patent according to auxiliary request 2 and restricted the number of auxiliary requests.
- On appeal, Xiaomi filed new evidence and argued for the first time that certain auxiliary requests were not inventive.
- In its response, Nera requested that the Court of Appeal not accept the new documents and the new reasoning with regard to the lack of inventive step.
- At Nera’s request, the Court of Appeal decided on the requests under 7 before the oral argument.
The Court of Appeal
- The (new) expert declaration could have been produced with the Statement of Claim or with the Reply in the revocation case in first instance because the arguments supported by the expert declaration were already known. Moreover, such expert report is of limited relevance as the skilled person does not exist and the interpretation of patent claims is a legal question.
- With respect to the new reasoning (new invalidity ground: lack of inventive step) based on D1, D2 and D4, it is clear that, in first instance these documents were only used to dispute “novelty”. This is not a case of reaching a different conclusion on the basis of the same facts, but rather a new line of argumentation based on a different interpretation and different facts. Xiaomi could have been done this earlier because it is based on Xiaomi’s own interpretation, which was of course known at the time, but Xiaomi chose in first instance to base its arguments on the supposed conflict between validity and infringement (squeeze). This is not the case with respect to D3.
- The Court of Appeal will not take any new materials and arguments into consideration.
Comment
- It is a good service from the Court of Appeal to rule on these issues two weeks before the oral hearing. This avoids unnecessary preparation by the parties and loss of precious time during the oral hearing.
- The rule seems clear. Based on the same facts (or the same interpretation of the facts), you can draw a different legal conclusion than earlier in the proceedings. You cannot later introduce different facts (or a different interpretation of the facts) unless there is a valid reason why this could not have been done earlier. I would also add that the other party should have the opportunity to react to any new legal arguments.
- As mentioned previously, UPC proceedings require thorough preparation from the outset. In my experience, it is good to work in a team. Encourage your team members to come up with different defences and with out-of-the-box thinking. There are often different ways to achieve the same outcome. Make sure that you include them at an early stage.
- Some jurisdictions are addicted to expert evidence. It is good that the Court of Appeal sends a message about its relative value in the UPC. Of course, a famous professor is certainly not the skilled person and what does he know about the (non-existing) skilled person?
1 July 2026 (late published)
Local Division The Hague, Curevac v Moderna
UPC_CFI_1407/2026; UPC_CFI_1408/2026
R. 190 RoP request
Facts
- Curevac filed infringement proceedings and a R. 190 RoP request on the same day, in which it asked for (many) technical specifications about the allegedly infringing production process.
- The parties agreed on streamlined dates for the written submissions of all 13 Moderna defendants.
- Moderna argued that the R. 190 RoP request is premature.
The JR
The JR cites the requirements for a successful R. 190 RoP request:
“(i) The requesting party must have presented plausible evidence “reasonably available” in support of its claims;
(ii) The evidence to which access is requested must be “specified” and lie in control of the other party;
(iii) The other party’s confidential information must be protected;
(iv) Any order to produce evidence must satisfy the requirements of necessity, proportionality, equity, and fairness”.- The JR states that the requirements of necessity and proportionality are not fulfilled at this stage of the proceedings.
- The JR sets the date for the Preliminary Objections and the Statement of defence on the dates agreed by the parties.
Comment
The general lesson, also evident from other decisions by Local Divisions, is that a R. 190 RoP request made before seeing the Statement of defence is premature. That is (in general) logical, as it is unclear what the defendant admits or what information it provides in its defence.