Below, 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 for weekly updates.
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 or Apple Podcasts.
1 September 2025
Local Division Munich, Knapp v Becton
UPC_CFI_848/2024; UPC_CFI_612/2025
Extension of time periods
Facts
Due to issues with the CMS, the deadlines for the Statement of defence and the Counterclaim for revocation are different, resulting in different due dates for the Reply in the infringement case and the Defence to the counterclaim for revocation or potential Application to amend the patent.
The claimant requested an extension of time periods for all the submissions until 9 September 2025. The defendant agreed.
The JR
Granted an extension to 5 September 2025 because an extension until 9 September 2025 (as well as 6, 7 and 8 September 2025) would, due to the weekend, lead to a time schedule for the next statements that would leave insufficient time for preparing the interim conference, which is scheduled for 16 January 2026.
Comment
- A very good decision. Despite the parties having agreed, the JR wants to make sure that the planned time schedule can be met!
- This is all due to the fact that there are different workflows for the infringement and the revocation cases, and the formal checks by the Registry. In the Drafting Committee of the Rules, I always opposed these formal checks by the Registry, as they cost time, manpower and are in the end not necessary. If there is something wrong, the other party can raise it in the proceedings. I have also opposed the necessity of raising a Counterclaim for revocation. Why can you not raise the invalidity as an inter partes defence? In cross-border cases, where you only raise the invalidity inter partes, this now also leads to complications. However, I was outvoted every time! You win some, you lose some!
1 September 2025
Court of Appeal, Centripetal v Keysight
Discretionary review
Facts
The JR and, following a R. 333 RoP application for panel review, the panel of the Court of First Instance refused a request for further exchange of pleadings (R. 36 RoP).
On 27 August, Centripetal filed a request for discretionary review by the Court of Appeal (R. 220.3 RoP). Centripetal argued that the decision was manifestly wrong because Keysight had changed its product and wanted the Court to take this into consideration.
The JR of the Court of Appeal
Denies the request, stating that you always have the possibility to bring separate proceedings against newly released products.
Comment
- When do representatives realize that a review of an order of the JR in first instance (R. 333 RoP) and a subsequent request for discretionary review by the Court of Appeal can only be successful in very exceptional cases?
- The argument that the decision of the Court of First Instance is manifestly wrong and deprives the patentee of an effective remedy is not convincing, given that the decision fully recognizes the fact that the issue of a new infringing product was raised only four months after its release.
- Why continue to have representatives spending their client’s money and the precious time of the Court on requests with zero chance of succeeding?
1 September 2025
Local Division Paris, Emporia v Seoul
Strawman
Facts
In a preliminary objection, the defendant Seoul asked the Court to dismiss the case because an infringement case relating to the same patent was already pending between the same parties. Seoul argued that In fact, Emporia acted as a strawman for the defendant, ex-pert Klein, as Emporia delivered the allegedly infringing products to ex-pert Klein. The Counterclaim for revocation had been dismissed by the Düsseldorf Local Division.
The Court
A straw company is characterized by its lack of effective operational activity. In this case, there are two companies with their own business activities.
The Court rejects the preliminary objection by Seoul.
Comment
This is a logical decision. The patent was not revoked by the Düsseldorf Local Division. This does not mean that a different company cannot now initiate revocation proceedings based on perhaps better prior art or better arguments. In this case, Seoul could have avoided the action by Emporia by not only suing ex-pert Klein in Düsseldorf but also Emporia its supplier of the infringing products. However, that would not have excluded the possibility of another third party starting revocation proceedings.
2 September 2025
Court of Appeal, CeraCon v Sunstar