UPC Unfiltered, by Willem Hoyng – UPC decisions week 30, 2026

30 June 2026 (late published)

Local Division Düsseldorf, ParTec v Lenovo

UPC_CFI_2258/2026 

PI application / necessity

Facts

1. The applicant seeks a preliminary injunction (“PI”) and other measures for alleged infringement of EP 3 743 812.
2. An infringement action of the appellant against NVIDIA was dismissed by the Local Division Munich. An appeal is pending.
3. On 22 May 2026, the applicant filed an infringement suit on the merits against the defendants, however this application was not signed until 25 June 2026.
4. On 24 June 2026, the applicant had filed a supplemental Statement of Claim stating that the defendants were now marketing an NVIDIA integrated stack, which is also the subject of the requested PI.
5. The applicant states that under the decision of the Local Division Munich, the (new) NVIDIA integrated stack would be infringing.

The Court

1. The Court rejects the application for lack of necessity.
2. There is no reason for an ex parte because the applicant did not allege that there is a risk that evidence is destroyed or that without ex parte there will be irreparable harm. 

3. There is also no reason for a preliminary injunction due to of lack of necessity. The Court states: 

   “Accordingly, R. 206.2(c) RoP requires that the Applicant in her application for provisional measures sets out the reasons why provisional measures are necessary to prevent a threatened infringement, to forbid the continuation of an alleged infringement or to make such continuation subject to the lodging of guarantees. This is not a formal requirement but concerns the merits of the application for provisional measures and must be considered by the judge when issuing an order under R. 211 RoP (UPC_CoA_335/2023 App_576355/2023 – NanoString vs. 10x, p. 21; CoA 540/2024, para. 20).”
    

4. The defendants were already on the market. In the case at hand, the applicant’s arguments do not even begin to indicate what specific market shares existed in the alleged relevant market prior to the introduction of the newly attacked embodiment, nor what shares are at risk of being lost if a decision on the merits were to be awaited. The applicant has not provided any specific evidence regarding long-term effects on customer relationships or purchasing decisions that are not easily reversible. Therefore, it is not apparent to the Court that a possible shift could lead to almost irreversible losses, particularly the applicant has not demonstrated at all that the allegedly infringing product undercuts prices significantly.

Comment

1. The way I read this decision is as follows: the defendant is already on the market with an allegedly infringing product for a long time . The defendant replaces that product with an also allegedly infringing product, and subsequently the applicant files for a PI without arguing and proving why this new product would lead to a change in the market shares existing at the introduction of the new product. In that case there is no necessity for a PI.
2. In my opinion, this all makes a lot of sense!

16 July 2026 (late published)

Local Division Düsseldorf, Imusyn v BAG

UPC_CFI_701/2025

Confidentiality from the public

Facts

1. A party can ask for confidentiality of certain information in case the public requests access to it. 
2. BAG requests a declaration that an agreement between the parties and the undertakings and obligations contained therein are confidential, as these also give information with respect to internal events and activities which should remain confidential.

The Court

1. The Court grants R. 262.2 RoP confidentiality with respect to the agreement and certain specific information.
2. The Court also states that what this means for the oral hearing will be decided if that question is raised, as it cannot give a blanket confidentiality declaration.

Comment

1. I have said before that if you want to be able to invoke confidentiality for pleadings and evidence vis-à-vis the public (R. 262.2 RoP), you should make sure, before filing such request, that you have kept that information confidential. This means that, in the proceedings, it is also treated as confidential vis-à-vis opposing counsel and their client. 
2. If the contents of this (or any other) confidential information is to be discussed during the oral hearing, a representative should ask the Presiding Judge for a meeting behind closed doors before discussing such confidential information. And that part of the oral hearing should not be made available on tape to the public either. 

17 July 2026 (late published)

Court of Appeal, Lionra v Cisco

UPC_CoA_360/2025

Settlement of (cross) appeal

Facts

1. On 19 February 2025, the Local Division Hamburg dismissed the infringement suit based on EP 2 201 740 as well as the counterclaim for revocation filed by Cisco.
2. Lionra filed an appeal.
3. The oral hearing in the appeal was set for 25 June 2026.
4. On 24 June 2026, the parties informed the Court that they had settled the case.
5. Lionra filed a withdrawal request and asked for a 20% fee return. Cisco asked to consider its cross-appeal as withdrawn (R. 237.5 RoP). 

The Court of Appeal

1. The Court states (or: repeats) that R. 265 RoP is also applicable on appeal. As Cisco agrees, the withdrawal is granted. The Court concludes that the cross-appeal is deemed to be withdrawn. A cost decision is not necessary as parties had indicated so. 
2. The Court goes at great lengths to explain its decision that the new “return rate” provisions apply to all cases withdrawn after 1 January 2026. Applying the new rules, it refuses the return of the 20% of the court fees.

Comment

1. I think that the Court of Appeal judges would have preferred a settlement a few weeks earlier, but that is the hard life of a judge. A lot of preparation for nothing. Of course, it is even worse if the settlement happens the day before the judgment will be issued. In a case involving Monsanto, the Court of Justice of the European Union (“CJEU”) just ignored the settlement (and the message of the Court of The Hague that the Court did not need an answer to its questions anymore because of the settlement between the parties). I know a judge who, many years after, still laments about the weeks of hard work he had invested in a judgment in a very complicated patent case, which was settled a few hours before the judgment. Unfortunately for judges, it seems only human that the will to compromise is only maximized if the pressure (uncertainty) is the highest.
2. I have already written that, in my opinion, it was the intention of the drafters of the new reimbursement rules that they would apply to new cases filed after 1 January  2025 but the Court of Appeal decided differently here, giving a further justification for that decision, which is of course better for the Court’s finances.
3. It is not clear from the decision if the cross-appeal by Cisco had to do with the infringement decision or with the counterclaim for revocation which they had lost. I assume the first, because, if Cisco wanted to appeal the decision in the revocation case, they should have filed – in my opinion – a normal appeal within the main appeal term. and I advise representatives to do so. The infringement action and the revocation counterclaim are two distinct cases.
   
    

20 July 2026

Local Division Paris, KEEEX v Adobe

UPC_CFI_530/2025

Increase of security for costs

Facts

1. On 19 December 2025, the Judge-Rapporteur (JR) had ordered KEEEX to provide a security for legal costs of € 200,000.
2. On 22 June 2026, Adobe asked for an additional security of € 1,800,000 or, alternatively, an amount the Court would consider appropriate.
3. Adobe justifies its request by the fact that KEEEX has asked for provisional damages of € 120 million since the December decision, which would complicate the proceedings.

The JR

1. The JR refers to a recent decision of the Court of Appeal on security for costs. It states that the standard rule is 50% of the maximum recoverable legal costs (here: € 2 million) and that, although SMEs are not exempted from having to provide security, the Court can take the SME status in consideration.
2. The JR orders an increase of € 100,000.

Comment

1. KEEEX claims billions of euros in damages, to be determined during damage proceedings, but surprised Adobe with a provisional claim for € 120 million, which despite desperate efforts of Adobe remained in the case.
2. Adobe’s next effort to ask for a much higher guarantee also fails, because the JR rules that she can take in consideration that KEEEX is an SME. I think that that is right and the increase of the security to € 300,000 in total also seems reasonable. 

20 July 2026

Local Division Munich, Oxford Nanopore v MGI

UPC_CFI_2307/2026

Extension of time 

Facts

1. On 26 June 2026, Oxford Nanopore filed for a PI.
2. Oxford Nanopore argued that the matter is very urgent as MGI is infringing or about to infringe four patents, and furthermore submitted that in Australia MGI had admitted infringement.
3. In view of the urgency, a full panel was constituted and met on 29 June 2026. On 30 June 2026, the JR ordered Oxford Nanopore to amend the application with claim construction and mapping of the infringement.
4. MGI was requested to file objections by 24 July 2026, with the reply and rejoinder to be filed respectively on 31 July and 6 August 2026. The oral hearing is scheduled for 19 and 20 August 2026.
5. The representative of defendant 1 received the amended application and the withdrawal of two of the four patents on 9 July 2026. 
6. On 14 July 2026, defendant 1 asked for an extension of time. Oxford Nanopore agreed provided that the date of the hearing would not change.

The JR

The request is denied: the Court needs time to prepare.

Comment

1. This is fully understandable.
2. First of all, you wonder why the claimant did not file an ex parte in view of the urgency and in view of what had happened in Australia.
3. The next question is why the claimant started with four patents, then dropped two of them, and failed to explain the claim or apparently to properly argue infringement (“infringement mapping”).
4. Finally, the defendants were apparently not able to draft objections in two weeks with a team of 12 representatives!

20 July 2026

Local Division Düsseldorf, LINA v Tonglu Qianyan Medtech

UPC_CFI_209/2026

Service in China

Facts

1. On 19 January 2026, the claimant filed an infringement lawsuit against the defendants based on EP 2 593 025.
2. The Registry attempted to serve the two Chinese defendants according to The Hague Convention.
3. The central Chinese authority stated in each case: “The recipient refused to accept the documents”.
4. The claimant asked for service though public notice.

The JR

1. The JR allows alternative service under R. 275.2 RoP and concludes that R. 275.4 RoP is satisfied as China permits public service. 
2. The JR finds that:
   1. the steps undertaken constitute good services under R. 275.2 RoP;
   2. services are deemed effective as of the date of this order. 

Comment

1. The Court could not apply Art. 15 of The Hague Convention which allows to issue a judgment if “no certificate of any kind has been received” within six months of the transmission of the documents. The Court did receive “a certificate of some kind” stating that the defendants had refused to accept the documents.
2. The JR turned to R. 275 RoP regarding service by an alternative method which I cannot find in the Convention. So a decision based on such alternative method will not be recognized in China (and other non-UPC countries?).
3. The JR states that R. 275.4 RoP is fulfilled as China also accepts “public service”.
4. What puzzles me is that the JR states that service (on the two Chinese defendants) is deemed to be effective as of the date of the order, while the “public” service (publication on the website of the Court) has not yet taken place and the 30-day period of publication has not yet lapsed.
5. I think that the Chinese defendants should at least get an email stating that the refusal of the documents does not mean that there is no service, with an indication of the date by which they have to file their defence through a representative.

21 July 2026

Central Division Munich, Raimund Beck v Baussmann

UPC_CFI_714/2025

Revocation action

Facts

1. Beck started revocation proceedings with respect to claims 1, 2, 5 and 8-11 of Unitary Patent 4 283 140 for a fastening element from wood or wood materials.
2. The patent was granted on 6 November 2024. Beck had filed an opposition with the European Patent Office (“EPO”). The oral hearing in the opposition proceedings has been set for 23 September 2026.
3. The Opposition Division of the EPO issued its preliminary opinion. The Court gave the parties the opportunity to react to that opinion.
4. The claimant argues invalidity for added matter, lack of novelty and/or inventive step.
5. The defendant filed 7 auxiliary requests.

The Court

1. The Court describes the subject-matter of the patent and the problem to which the invention claims to provide a solution.
2. After citing the claim construction principles referring to the Court of Appeal’s decisions in CoA_335/2023, 1/2024, 182/2024, the Court interprets certain features of the claim. 
3. The Court states that: “Based on the function of the individual feature in the context of the entire patent claim, the skilled person will determine the technical function of the feature, both individually and as part of the whole. With regard to the terminology used in a patent specification, this may lead the skilled person to assign a meaning to a term that differs from its general linguistic usage. The patent specification may define terms independently and, to that extent, constitutes its own glossary.”
4. The Court gives a broad interpretation to a claim element if such element does not contain limiting features or such limiting features only appear in dependent claims.
5. However, if the description makes clear that the invention is different from certain prior art, then the interpretation should not cover such prior art.
6. The Court concludes that there is no added matter: it does not follow the argument of the of an unallowable intermediate generalization as long as there is not an “inextricable link” with the context from which the claim element is taken. 
7. The Court cites the principles for assessing novelty and finds that claim 1 is not novel. The Court states that a device claim defined exclusively by structural features “is generally not limited to the device performing a specific function. For the assessment of the novelty of such a claim, this means: If the prior art discloses a device that fulfills all the structural features of the claim and is at the same time suitable for the purpose specified in the claim, the claim lacks novelty, even if not all of the technical effects of the claimed device described in the contested patent but not claimed therein are realized in the prior art.”
8. The Court considers auxiliary request 1 (consisting of claim 2 as granted, which includes the subject-matter of claim 1 and the additional features claimed in claim 2) to be novel.
9. The Court rejects the claimant’s arguments based on Art. 84 EPC as a lack of clarity cannot be invoked against a granted claim.
10. After referring again to the above-mentioned leading decisions of the Court of Appeal, the Court finds that auxiliary request 1 is inventive.

Comment

1. A clear, extensively reasoned decision delivered within a year!
2. The patentee filed an auxiliary request to defend granted claim 2, but as the Court of Appeal confirmed in FUJIFILM v Kodak (CoA_881/2025), it is not necessary to file an auxiliary request for granted claims (and as we have seen in that decision, an Art. 84 EPC objection cannot be raised against granted claims). It is however important to be clear about what claims you want to defend exactly (and why that claim is novel and inventive). In this case, the patentee had not been clear enough but was helped by the Court during the oral hearing.
3. If a claimed device has already been made public in the prior art and can also be used for the same purpose as the claimed device as stated in the claim, that claimed device is not novel, even if it does not have all the described technical advantages. Of course, if there is no purpose (use) of the device stated in the claim, then any prior art device which reads on the claimed device will destroy novelty.
4. The “reverse” question is: what happens if a claim is granted for a device (with no purpose limitation in the claim) after it has been considered inventive because of certain properties and a later-developed device falls within the claim language but lacks these inventive properties? The simple answer is that the granted claim is too broad and invalid because it covers devices which do not have the inventive properties. In the two cases that I litigated in which this happened, the Dutch court saved the patent and found non-infringement by reading the inventive properties into the claim and/or by saying there cannot be infringement if the “inventive idea” of the granted patent is not realized. Creative thinking, but what about in the UPC?
5. The Court also held that if a prior art document contains an error but the skilled person can still read and understand the document (albeit without noting that there is an error), the document with the error is considered prior art. If the error is obvious for the skilled person, the corrected document will be treated as prior art. All very logical!

22 July 2026

Court of Appeal, Advanced Brain Monitoring v Philips

UPC_CoA_63/2026; UPC_CoA_64/2026

Art. 9 request

Facts

1. The Local Division dismissed the infringement action started by Advanced Brain Monitoring (ABM) and revoked the patent.
2. ABM appealed both decisions and filed 11 additional auxiliary requests on appeal.
3. Philips asked the Court of Appeal to rule that these additional auxiliary requests have not been validly introduced on appeal or alternatively to be granted an extension of time for their Statement of response.

The JR

1. Normally, this type of decision shall be dealt with in the context of the appeal as a whole unless there are particular circumstances.
2. As the JR finds no such particular circumstances, the decision on the auxiliary requests will be taken at a later stage of the proceedings.
3. The JR dismisses the requests.

Comment

1. The JR observes that the early determination requested by Philips would require study of the whole file.
2. That may be true and, from that perspective, it may be more efficient to decide this later on during the appeal or in the final decision. On the other hand, an early decision may save the parties extra work (and costs). In any event a decision prior preparation of the hearing prevents an inefficient use of the time booked for the oral argument. 
3. The UPC created the position of JR in order to streamline proceedings. So, from that point of view, one may argue that the JR, who is supposed to know the file from the start, could have been more “hands on”. It all remains a matter of judgment. 

23 July 2026

Local Division Brussels, Ter Meer v 2Seventy Bio, Johnson & Johnson, and intervenor USA

UPC_CFI_2192/2026

Access to file

Facts

1. On 18 June 2026, the applicant requested access to the following pleadings and evidence submitted in the UPC proceedings with respect to EP 3 689 383:
   1. the Statement of Claim relating to claim construction;
   2. the Counterclaims for revocation by the defendants.
2. All respondents requested dismissal of the application, pointing to the fact that the proceedings were ongoing.
3. In terms of specific interest, the applicant (a patent-attorneys firm) argued that a period for lodging an opposition to a given patent will expire before the first-instance decision.

The Court

1. The Court refers to the case law of the Court of Appeal, especially Ocado v Autostore (UPC_CoA_404/2023).
2. In case a request for access to file during ongoing proceedings, a more specific interest or direct legitimate interest is necessary.
3. The applicant does not mention any specific client, only that it advises pharmaceutical companies.
4. The Court refuses the application.

Comment

I fully agree with this decision. It will in general be very difficult for a law firm to have a very specific interest in such a document. In this case, the law firm was not able to identify a client with a very specific interest. In general, it should be the company with the very specific interest which should ask for such information, citing the specific interest.

Of course, a company may not always want to disclose why they have a specific interest. I can imagine that a law firm could, in such a situation, get access to the file of an ongoing case if they argue that they act for company X, which for competition reasons does not want to disclose their name and that they have been instructed to file opposition proceedings while citing the reason for such opposition proceedings (for instance because their client is developing or making preparation to sell a product for which the patent may be relevant). I would add that a strawman will file the opposition. However, I would not be surprised if the Court of Appeal in the end would rule that a law firm would not have a direct special interest.

24 July 2026

Local Division Düsseldorf

Applicant: Vereenigde Octrooibureaux 
Claimant: Dolby
Defendant: Optoma

UPC_CFI_226/224; App_11638/2025 

Access to file

Facts

1. V.O. (a Dutch patent attorneys firm) wants to obtain information from the Register with respect to the proceedings between Dolby and Optoma which resulted in a settlement.
2. V.O. states that they want this information to know why the claimant thinks that the patent (EP 3 605 534) is essential for the Opus standard.
3. The claimant states that the request is not specific and anyway the applicant has no sufficient interest. 

The Court

1. As far as the request is specific and V.O. has explained why they want the information, the request should be granted.
2. However, as far as it is a generally worded request, the request has to be dismissed. One cannot expect the Court to go through the whole file to find the requested information. 
3. The Court grants access (on the basis of alternative request 1) to the Statement of Claim without the exhibits and after the personal data have been blackened. 

Comment

1. Note this is a request after the end of the proceedings. For such a request a more general interest (“for study” or “for education”) is sufficient.

2. As I have stated before, it would be more efficient if R. 262 RoP would be changed and after the (for instance) proceedings automatically access will be granted. If parties want to make sure that their confidential information is protected, they should make clear during the litigation that they ask for confidentiality. The public gets (after the litigation) automatic access to the file (as in the EPO) with the redacted text. A member of the public can then, if it desires so, challenge the confidentiality of certain information.

    

24 July 2026

Local Division Düsseldorf, InterDigital v Disney

UPC_CFI_87/2025; UPC_CFI_488/2025 

FRAND, unwilling licensee

Facts

1. InterDigital sues 11 Disney defendants for infringement of EP 2 499 782 for “Methods and apparatus for signaling intra prediction for large blocks video encoders and decoders”. 
2. InterDigital claims that defendants are infringing by offering the Disney+ streaming service in the UPC territory.

The Court

1. The Court allows and refuses certain late submissions. With respect to the refused submissions, the Court notes that they would not have made a difference.
2. The Court defines the skilled person and describes the scope of the patent.
3. The Court interprets claim elements of the invoked claims (5 and 17).
4. The Court adopts in general a broad meaning of the claim features rejecting among others defendants arguments for the first time presented during the oral hearing (“even if they were taken into account would not lead to a different assessment”). 
5. The Court: “as a general rule: embodiments should generally be understood as being encompassed by the claims”. 
6. The counterclaim for revocation is unfounded.
7. The Court rejects all the “intermediate generalization” arguments and the (4 different) lack of novelty arguments after citing the principles.
8. The patent is inventive. The Court states among others the following:
   
   “246. A claimed solution is obvious if the skilled person would have taken the next step in expectation of finding an envisaged solution of his or her technical problem. This is generally the case when the results of the next step were clearly predictable, or where there was a reasonable expectation of success.
   247. The burden of proof that the results were clearly predictable or the skilled person would have reasonably expected success, i.e. that the solution he or she envisages by taking the next step would solve the objective problem, lies on the party asserting invalidity of the patent. A reasonable expectation of success implies the ability of the skilled person to predict rationally, on the basis of scientific appraisal of the known facts before a research project was started, the successful conclusion of that project within acceptable time limits. 
   248. Whether there is a reasonable expectation of success depends on the circumstances of the case. The more unexplored a technical field of research, the more difficult it was to make predictions about its successful conclusion and the lower the expectation of success. Envisaged practical or technical difficulties as well as the costs involved in testing whether the desired result will be obtained when taking a next step may also withhold the skilled person from taking that step. On the other hand, the stronger a pointer towards the claimed solution, the lower the threshold for a reasonable expectation of success. 
   249. When the patentee brings forward and sufficiently substantiates uncertainties and/or practical or technical difficulties, the burden of proof that these would not prevent a skilled person from having a reasonable expectation of success, falls on the party alleging obviousness.”
    
9. The Court rules that defendants did not properly explain why there is a lack of inventive step in view of D2 and D3 and further attacks in the reply were late filed (but anyway not successful). 
10. Because of the result of the claim interpretation, the only remaining non-infringement argument of defendants has to be rejected. 
11. The FRAND defence is not successful. The defendants have not established that claimant holds a dominant market position.
12. The dominant market position cannot be based on a de re standard (because encoding is not part of the HEVC standard) or a de facto standard, because the defendants have not proven that they cannot offer their services without using the patent. That they cannot use certain technical advantages is common when a claimed invention improves the prior art. 
13. The FRAND declaration of the patentee did not cover the invoked claims.
14. However, even if this would have been different, following Huawei v ZTE, the FRAND defence of the defendants would not have been successful.
15. The Court describes the negotiating process and the behavior of defendant, especially the defendants’ refusal of the claimant making certain submissions for alleged breach of an NDA and their refusal to amend the NDA. The Court concludes that defendant is an unwilling licensee.
16. The Court noted also that contrary to Huawei v ZTE, Disney (after its counteroffer was rejected) did not provide security.
17. The Court grants injunctions and other relief, but orders a guarantee of € 8 million because of the uncertain financial position of the claimant, while rejecting the claim of Disney that it will lose € 500 million within a year if the injunction is enforced as unsubstantiated. 

Comment

1. If you read this case, you note that the German representatives deal with this case (originally filed in German) as if in a national German court, ignoring the fact that the UPC has a front-loaded procedure. The Court dutifully adheres to the UPCA by holding that many of the arguments are late-filed, but then nevertheless deals with these arguments to show that they would not have made a difference. That is of course excellent service to the parties, but not an encouragement for representatives to change their behavior when litigating in the UPC. 
2. In my opinion, Disney put up a poor show. Their arguments in defence were late and not convincing and their whole behavior was the typical behavior of an unwilling licensee. Disney refused submission of negotiation documents and objected to amendment of the NDA, while it also not followed the rules of Huawei v ZTE by putting up security if your counteroffer is refused. These are no good tactics, in my opinion. 
3. This is a case about money. The most preferred solution is for the JR, during an early interim conference, to try to get the parties to agree on arbitration or mediation about what would be a reasonable rate. As PMAC has now opened its doors, that would be the (preferred) way to solve these cases.  

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