UPC Unfiltered, by Willem Hoyng – UPC decisions week 09, 2026

8 January 2026 (late published)
Local Division Milan, Primetals v Danieli

UPC_CFI_702/2025; UPC_CFI_377/2025

Order to provide evidence

Facts

1. On 17 October 2025, Primetals filed an application to produce evidence.
2. Primetals stated that during an earlier evidentiary seizure, no documents were found relating to the plant with allegedly infringing machines. Danieli could not give a satisfactory answer why there was nothing while they had built the plant.
3. Therefore the Court is asked to give an order that the defendant has to produce documents and technical information which would enable claimant to ascertain the role of Danieli in the construction of the plant. 

The Court

1. The Court considers it not credible that during the saisie, Primetals was not aware of the highly specialized machine delivered by Danieli to Vietnam. So they should have looked for the information during the saisie and apparently they did not.
2. Primetals did not put forward enough facts with respect to a suspicion of infringement to justify the requested order. 

Comment

1. It remains strange that the Milan Local Division does not mention the representatives of the party.
2. The decision in my opinion is correct and well-motivated. Primetals should have acted much more diligently and should have done much more preparation before asking for the saisie.
3. Why does it take almost three months to decide on this request? This is not the speed you may expect from the UPC. Such request should be dealt with - after having given the other party two weeks to respond - within a month. It is also unclear why the decision of 8 January 2026 was only published last week.

18 February 2026 (late published)
Court of Appeal, Sanofi v Amgen

UPC_CoA_528/2024; UPC_CoA_529/2024 

Suspensive effect

Facts

1. On 1 June 2023, Sanofi started a revocation action in the Central Division Munich.
2. On the same day, Amgen started an infringement action in the Local Division Munich which was referred (with the agreement of the parties) to the Central Division and joined with the revocation action. The infringement action was stayed.
3. On 16 July 2024, the patent was revoked.
4. On 25 November 2025, the Court of Appeal set aside the revocation decision, upholding the patent and ordering Sanofi and Regeneron (each) to pay the costs.
5. On 26 January 2026, Sanofi and Regeneron filed an application for a rehearing and for suspensive effect. Application for costs by Schnell on 28 November 2025.

The JR of the Court of Appeal

1. An application for a rehearing does not have suspensive effect, unless the Court of Appeal decides otherwise.
2. So the default rule is: no suspensive effect. Sanofi and Regeneron have not put forward any arguments why there should be suspensive effect.
3. The application is refused.

Comment

1. In view of the lack of substantiation, this outcome was to be expected. If you want an exception to the rule, you will have to bring (convincing) arguments which justify such exception. 

18 February 2026 (late published)
Court of Appeal, Syntorr v Arthrex

UPC_CoA_889/2025;UPC_CoA_890/2025

Security for costs

Facts

1. On 13 February 2025, Syntorr sued Arthrex for infringement.
2. On 29 April 2025, Syntorr filed an application for security for costs.
3. On 11 August 2025, the Local Division (“LD”) Munich ordered € 2 million as security for costs, to be provided before 30 September 2025.
4. Syntorr provided a bank guarantee on 1 October 2025.
5. Syntorr lodged a request for discretionary review (on the basis of R. 220.3 RoP) on 13 October 2025.
6. Syntorr requests to set aside the order of the LD Munich and an order to return the bank guarantee. As an auxiliary, Syntorr requests to allow providing the security by a licensed insurer established in the EU.
7. The standing judge allowed leave for appeal.

The Court of Appeal

1. The Court cites Art. 69(4) UPCA and its purpose: defendants should be able to get their costs if they win.
2. The Court cites R. 158.1 RoP, which stipulates that the CFI shall decide if it is appropriate to order the security by deposit or bank guarantee, and stresses the discretionary character of such a  decision (the Court “may order”).
3. The Court of First Instance was wrong in stating that the list (i.e. a deposit or bank guarantee) was exhaustive.
4. The Court of Appeal discusses in detail the content of the insurance policy, and concludes that it is clear that in case of a loss of Syntorr, the defendant would be able to recover its costs from the insurer up to an amount of € 4 million.
5. The Court sets aside the Munich orders and orders release of the bank guarantee.

Comment

1. Note the long time it took for the busy Munich Local Division (3,5 months) to make the (wrong) decision about security for costs. The Claimant could have filed in many less busy Divisions.
2. The Court of Appeal corrected the decision. It seems pretty obvious that if the Court has discretion to not grant a request for security for costs, it certainly has discretion to decide that such security is not necessary because there is no risk that defendant will not get its costs.
3. Sure, it may sometimes take more time and effort to make such decisions. In this case, the Court of Appeal discusses the different clauses of the insurance policy (and the place of establishment of the insurer) in order to come to the (in my opinion logical) conclusion that the defendant does not run a risk.
4. The decision is also good for users of the UPC, as it provides a clear guide of how an insurance for costs has to be framed in order to be sufficient to prevent having to put up security.
5. One can also think of other ways to avoid having to put up security, such as a strong financial company (financing a small patentee for the litigation) who guarantees to the defendant payment of their costs if the claimant loses, all assuming that execution of the guarantee is simple (such as when the financially strong company is established in the EU). 

19 February 2026 (late published)
Local Division Paris, Gowling v Merz and Viatris

UPC_CFI_283/2026

Public access to case file

Facts

1. An order for preliminary measures was issued in Merz v Viatris on 27 November 2025.
2. Gowling, a UK law firm, requested  access to the file for “including but not limited to” a number of documents.
3. Merz opposed the request because of its lack of specificity or, alternatively, asked that documents be redacted.
4. Viatris also wanted restrictions.

The Court

1. Referring to the case law of the Court of Appeal, the Court states that after the decision on a case has been made public, access to the file on a reasoned request should in principle be granted.
2. A reason for a law firm is getting a “better understanding of the decision” by seeing what submissions and evidence it was based on.
3. The request must be specified; in other words, it should contain a list of the requested documents. Only those actually listed in the request will be accessible.
4. Documents which are already publicly accessible cannot be requested.
5. (Parts of) documents for which no confidentiality has been asked during the proceedings are not considered confidential: no confidentiality can then be asked anymore on the basis of  R. 262.2 RoP.
6. Access will only be given access to pleadings and exhibits which addressed the point of law (here: “unreasonable delay”) that was actually decided in the judgment.

Comment

1. Gowling argued that it needed access for a better understanding of the decision. As the decision only rules on the question of unreasonable delay, no access is given to the documents as far as they relate to the other issues discussed in the proceedings. Therefore, Gowling does not get free access to, for instance, the invalidity arguments.
2. The Local Division confirms what I wrote earlier: if you do not ask for confidentiality (R. 262A RoP) in the course of the litigation, you can no longer use it against a member of the public.
3. As the decision shows, handling such requests for public access must be quite time-consuming for the Court. I wonder whether it would be possible to think of a more efficient method under the (to be) revised Rules.

19 February 2026  (late published)
Local Division Vienna, Messerie v Sabert
UPC_CFI_26/2025;UPC_CFI_375/2025 

Infringement decision

Facts

1. Messerle sued Sabert for infringement of EP 3 705 415 on 17 January 2025.
2. Sabert denies infringement and filed a counterclaim for revocation.
3. Messerle filed 7 auxiliary requests.

The Court

1. The Court starts by discussing the patent (relating to packages, in particular for foodstuffs).
2. It observes that the patent was granted in German and therefore – although the language of the proceedings is English – bases its interpretation of the English translated claim on the German original text.
3. The Court interprets two disputed claim features. As these features are already decisive for the outcome of the infringement case, the Court leaves other disputed claim features undecided.
4. When it comes to novelty, the Court cites different decisions, including the decision of the Court of Appeal of 25 November 2025 in Meril v Edwards (CoA_464/2025) applying the so-called “gold standard”.
5. The defendant had initially based its novelty attack on a leaflet. Only after the claimant had challenged the content of the leaflet in the Reply to the Defence to the Counterclaim (which was to be expected as the Court pointed out), the claimant produced physical samples and further evidence. The Court, citing the front-loaded character of the proceedings, rejects this evidence as late-filed, because it could and should have been produced with the Counterclaim.
6. For the same reasons, it dismisses the new public prior use line of argument based on these new exhibits. However, in an obiter dictum, the Court stated that whether or not  the late-filed evidence were accepted did not change the outcome.
7. With respect to inventive step, the Court follows the principles set out by the Court of Appeal in Meril v Edwards (UPC_CoA_464/2024) and Amgen v Sanofi (UPC_CoA_528/202).
8. In particular, it is noted: “The fact that other persons or teams were working contemporaneously on the same project does not necessarily imply that there was a reasonable expectation of success. It may also indicate that it was an interesting area to explore with a mere hope to succeed”.
9. In the end, the patent is held to be inventive but not infringed. 

Comment

1. The Vienna Local Division introduces its decision with a timeline of the written procedure, giving the reader an opportunity to immediately see how the case proceeded. Here, the whole case took 13 months, which is perfectly fulfilling the promise of the UPC (i.e. a decision in 12-14 months). Therefore, even in the cases where the language of the proceedings is German, the Vienna Division would be a perfect alternative to the busy German Divisions!
2. I cannot understand why the defendants in their counterclaim for revocation only produced a leaflet of the prior art product which they alleged would take away novelty. Provided that it is still available or can reasonably be traced back (which was presumably the case as the defendants were eventually able to produce it), there is of course nothing better than the prior product itself, with proof that it was publicly available before the priority date.
3. The Court was right to refuse this as being late-filed, especially since, according to the Court, it was pretty clear that the leaflet as such was not good enough evidence.
4. This time again (it has already happened in other Divisions), the Court was nice to inform the parties that, even if it were allowed, the late-filed evidence would not have made a difference.
5. The Court interpreted the English claims of the patent by reference to the German claims because the patent was granted in German. But what if the translation of the German version of the claims would have been wrong and the English claims would clearly have had a more limited meaning? That may not happen very often and small differences or unclarities can be solved in the way the Vienna Local Division did. But many national laws require at least a translation of the claims in the local language (or English) and provide that if the translation has a more limited scope, the scope of the claim is limited to the translation. This resulted in a few cases in a finding of non-infringement. As a defendant, can one argue in the UPC that one relied on the claim in English and is not infringing that claim, such that the fact that one may infringe the German claim is irrelevant (because German is not one’s native language?).
6. With respect to a bundle patent, it seems clear that the UPC will retain the scope of protection as determined by the respective country. In the case at hand, such a defence of a more limited scope based on national translation requirements was not raised and the approach of the Vienna Local Division was in my opinion the correct approach.
7. During the transitional period, an English translation of a Unitary Patent granted in German or French is necessary. As far as I can see, there is no provision for the (rare) situation of a more limited scope of the English claims. But as the translation is necessary for a Unitary patent (different from the translation mentioned in Art. 4 of Regulation 1260/2012) I think that a defendant could argue that it relied on the English text. Note to the patent attorneys out there: make sure you check the translations if applying for Unitary effect or a national European patent!

24 February 2026
Court of Appeal, Suinno v Microsoft

UPC_CoA_883/2025; UPC_CoA_892/2025

Application for rehearing

Facts

1. Suinno was ordered to provide a security for costs of € 300,000. It did not do so but appealed the order, asking for a lower amount.
2. Microsoft asked the court of first-instance (CFI) to issue a default judgment, which was denied. Microsoft appealed.
3. The Court of Appeal rejected Suinno’s appeal and granted the default judgment, also ordering Suinno to pay the costs of the first instance and appeal proceedings.
4. Microsoft sought cost determination proceedings. Leave for appeal requested by Suinno against the outcome was refused by the CFI and Court of Appeal.
5. Suinno applied for a rehearing, citing fundamental procedural defects. 

The Court of Appeal

1. The Court refers to Art. 81(1) UPCA and recalls that, as a principle, decisions of the Court of Appeal are to be final and a rehearing is therefore only to be considered in exceptional circumstances (fundamental procedural defects, not mere errors, and only if the fundamental error has led to an incorrect result).
2. In case of a procedural defect, these circumstances must not have been known or, if known, must already have been objected to during the proceedings leading to the decision on appeal.
3. The Court must consider all the arguments raised by the parties but that can be done implicitly: irrelevant or obviously flawed arguments can be disregarded.
4. The Court of Appeal did address in its attacked decision Suinno’s arguments that Microsoft had asked an extremely high security, about the risks in terms of access to justice and of breach of the right to a fair trial.
5. Suinno’s financial status was the reason for Microsoft’s application for a security in the first place and yet Suinno failed to comment on this before its application for a re-hearing.
6. Suinno stated that the Court of Appeal had wrongly decided that a default judgment must be given (while the rule says “may”) but that is a wrong, simplistic reading of the decision.
7. Not agreeing with a security order because it is considered too high does not justify a non-payment. Court orders have to be complied with. If you do no agree, you have to use the remedies provided for in the Rules of Procedure. Not complying with a security order may lead to a decision by default.
8. The Court rejects the application for rehearing as not allowable.

Comment

1. The Court of Appeal makes it crystal clear that that one should not see the “rehearing” procedure as a kind of further appeal, but that an application for a rehearing will in practice only succeed in highly exceptional cases. The Court sets out all the conditions which have to be fulfilled before the application goes through.
2. But before one gets the impression that with an application for security of costs it would be easy for a big company to make a small patentee go away, I would like to point to the following: it does not look like in the first instance or the appeal Suinno had clearly argued and proven that they were a small company with insufficient assets while having a serious claim of infringement. In the rare case of a private person or small company with a solid and infringed patent, the latter should first try to secure finances and, if it is not possible, show the Court their situation and the fact that they have a prima facie good case. In such a case, the Court should be prepared to set the security at an amount which does not prevent the patentee from pursuing its infringement claims. However, this seems a rather theoretical case as in general for a reasonably good case finance can be found.   

24 February 2026
Central Division Munich, UPM v N&H

UPC_CFI_829/2024 

Revocation proceedings

Facts

1. On 20 December 2024, UPM started revocation proceedings with respect to EP 2 611 800.
2. The patent relates to a sugar composition.
3. A divisional patent was revoked by the Technical Board of Appeal (“TBA”) of the European Patent Office (“EPO”).
4. UPM argues revocation based on extension of subject matter, lack of novelty and lack of inventive step.
5. N&H filed 19 auxiliary requests (some of which N&H wanted to replace by other auxiliary requests later in the proceedings).
6. N&H also requested, in case the auxiliary requests would not save the patent, to maintain the patent with an amendment according to Art. 65(3) UPCA.

The Court

1. After discussing the patent and referring to the principles for claim interpretation as formulated by the Court of Appeal in its decision in Nanostring v 10x Genomics, the Court states that the claim is for a composition, which means that it is a product claim.
2. A product claim gives absolute protection of the product, irrespective of how the product has been made.
3. The word “comprising” means that the product can also contain other components, as long as the components specified in claim (features 2-4) are present with the quantities specified in the claim.
4. Claim 1 states that the claimed composition contains at least a marker molecule, but it is unclear how the quantity should be calculated.
5. The Court does not accept the proposed correction of the claim (proposed during oral argument) for calculating the quantity of marker molecules present. You can only by way of claim interpretation correct inaccuracies, linguistic errors, etc., but here even the proposed correction itself is not clear.
6. The Court holds that the skilled person as regards to the composition as claimed in claim 1 will understand that the composition comprises a range of marker molecules calculated in respect of the total sugar composition.
7. The latter claim element as interpreted by the Court cannot be found in the application so there is an extension of subject matter.
8. The auxiliary requests do not solve the extension of subject matter, and the late filed auxiliary requests are not admitted because they could have been made earlier.
9. Art. 65(3) UPCA does not exclude a procedural framework such as in the present Rules of Procedure.
10. There is also no inventive step.

Comment

1. The case shows the importance of the carefully drafting of patent claims and the drafting of an adequate defence in litigating in the UPC.
2. No timely auxiliary request (of the numerous requests) was able to correct the extension of subject matter problem.
3. Further auxiliary requests were clearly late.
4. It should have been clear that reliance on Art. 65(3) UPCA would not be accepted and in fact seems to signal that the defendant does not know himself which auxiliary requests could save his patent.
5. The inventive step problem was connected, in my opinion, to the non-optional claim drafting.
6. It seems a very good case for the education of patent attorneys: how can I get a valid claim for this invention assuming that would be possible!

24 February 2026
Court of Appeal, Gowling v Zentiva/Boehringer

UPC_ CoA_9/2026 

Access to file

Facts

1. Gowling (a law firm) asked for access of the file in first instance and in appeal from the Court of Appeal.
2. Boehringer stated that it assumed that Gowling would get only access to the file of the Court of Appeal.
3. Zentiva argued that no access should be given as the main proceedings were still ongoing.

The Judge Rapporteur of the Court of Appeal

1. Gowling reacted uninvitedly to the answers of Zentiva and Boehringer. Such reaction is not foreseen in the Rules of Procedure and will therefore be disregarded.
2. You should ask access to the first instance file at the relevant Division, and to the appeal file at the Court of Appeal.
3. You have to specify the documents/evidence you want to obtain, so that the Court does not have to search.
4. The request to access for (unspecified) exhibits will be dismissed.
5. Zentiva has made arguments about sensitive documents but not as part of a request on the basis of R. 262.2 RoP, so no confidentiality will be granted.
6. With respect to Boehringer, access shall be given only to the redacted documents.

Comment

1. Apparently many representatives do not read the decisions of the UPC (or my weekly summaries with recommendations to representatives).
2. Why do I say this:
   1. Gowling asked without specification about certain exhibits (“evidencing the threat of infringement” or “relevant to the balance of interest”). It was very clear that such unspecific requests will be rejected.
   2. Zentiva asked for refusal of the request because of pending main proceedings, while it was crystal clear that that is not a reason for refusal.
   3. Zentiva did not file a request for protection of confidential information under 
      R. 262.2 RoP which was accompanied with redacted versions of the document for which confidentiality was claimed. Then such protection will not be granted!
3. It was not yet decided (but pretty clear from the Rules) that you have to ask access from the Division or instance (CFI or CoA) which has dealt with the case. 

24 February 2026
Central Division Munich, TCL v Corning

UPC_ CFI_337/2025 

Revocation action

Facts

1. This revocation action started on 22 April 2025 with respect to EP 3 296 274 for a method for producing alkali free glass for among others display devices.
2. The claimant states that the patent lacks novelty, inventive step and goes beyond the content of an earlier application and is not sufficiently disclosed (Art. 83 EPC).
3. The defendant filed 20 auxiliary requests.

The Court

1. The Court discusses the patent and the problems it purports to solve.
2. The Court then interprets certain claim features discussed by the parties referring to the principles established by the Court of Appeal in Nanostring v 10x Genomics (UPC_CoA_335/2023) and Insulet v EOFlow (UPC_CoA_768/2024).
3. Also on the basis of the expert reports submitted by both parties, the Court concludes that the different components (used in the method) have a strong interdependence and nonlinear relationships, which can lead to nonlinear property changes of the end product.
4. The Court concludes that there is no added matter. It notes: “The assessment of added matter cannot be restricted to only those parts of the original application which the patent proprietor indicated as a basis for the amended claim during the examination proceedings at the EPO, since the proper understanding of these parts also requires an assessment of their content in the context of the disclosure of the application as a whole.”
5. The Court points out that the burden of proof lies on the claimant, and concludes that the invention is sufficiently disclosed.
6. The Court applies the gold standard and concludes that the patent is novel. Although D9 discloses the different products used in the patented method, it does not disclose the method (for producing alkali free glass sheets by a downdraw process) as such.
7. For the principles for assessing inventive step the Court refers to the Court of Appeal’s decisions in Amgen v Sanofi and Meril v Edwards (“the UPC approach”).
8. The Court: “a realistic starting point is typically a prior art document as a whole: looking in such a publication for an example which in structural elements comes closest to the invention and considering that specific example as realistic starting point bears the risk of a selection of that example with hindsight.”

Comment

1. A well-reasoned decision in 10 months!
2. The decision is a good (extra) lesson for the evaluation of inventive step. Looking in a (general) publication for an example (out of several) that is closest to the invention and calling that a realistic starting point is indeed (the Court stated it more careful) tainted with hindsight. That is possible for novelty purposes but not for establishing inventive step. That may be different if there is a clear pointer in the publication to such example as part of the solution of the problem which the patent resolves.
3. The same is true (see headnote 2 of the decision) for what I would call mosaicking (i.e. finding different claim elements in different publications), except in a true case of aggregation. However, where claim elements are interdependent, even without a synergetic effect, that would not be the correct approach. 

24 February 2026
Local Division Munich, UERAN v Xiaomi

UPC_ CFI_609/2025

Amendment of confidentiality order

Facts

1. The Court issued a confidentiality order (R. 262.2 RoP) on 20 January 2026.
2. Access was restricted to the claimant’s authorized representatives of a law firm and a patent attorney firm.
3. The defendants request to amend the confidentiality order and restrict it to the lawyer who was registered in the CMS system and not to the patent attorney, as the confidential information (about license negotiations) were not of a technical nature.
4. Defendants also request to remove the expert (a Chinese lawyer) from the confidentiality club because she would not be independent and objective.

The Court

1. Both lawyers and patent attorneys with the Art. 48 UPCA can fully represent a party in all matters, so they will not be excluded because the confidential information is not of a technical nature.
2. Whether the expert is not independent or objective is something for the main proceedings. 

Comment

1. An understandable decision! On the basis of Art. 48 UPCA, patent attorneys have exactly the same status as lawyers. Their involvement is not limited to technical issues only, like lawyers are not limited to legal issues. The Court also expresses completely correctly that Technical Judges are full judges of the Court which have a full role also in non-technical matters. It is a misunderstanding in seeing Technical Judges simply as technical advisors of the Court. On the other hand, it is also possible that the legal judges may disagree on a technical point with the Technical Judge. All judges are full judges.
2. Having said this, I add that having a law degree or an Art. 48 qualification which may qualify somebody as a representative does not automatically mean that you are a competent UPC representative! From reading all published decisions, I come to the conclusion that it is important for users of the system who want to be as successful as possible in UPC litigation to use experienced representatives with experience in litigation. The best representation is often a team of experienced lawyers and patent attorneys, exactly what the claimant in this case had chosen. 

24 February 2026
Local Division Mannheim, Trumpf v IPG

UPC_ CFI_735/2024; UPC_ CFI_224/2025  

Infringement / revocation

Facts

1. Trumpf sued IPG for infringement of claim 6 of EP 2 951 625 with respect to a laser.
2. IPG denies infringement and filed a counterclaim for revocation.
3. Trumpf filed 10 auxiliary requests with respect to claim 6.

The Court

1. R. 30 RoP is a lex specialis with respect to R. 263 RoP.
2. The Court discusses the patent and concludes for which problem the patent gives a solution.
3. The Court discusses some features of claim 6 (the claim allegedly infringed). The Court rejects among others the limited interpretation proposed by defendant of “fibre bundle” and rejects also the argument of defendant that “an inner fibre” can mean more than one inner fibre by referring among others to the original English language “[only] one inner fibre” and to the description.
4. The Court rejects the counterclaim for revocation.
5. The Court cites the “gold test” for extension of subject matter and concludes that claim 6 was already disclosed in the application.
6. D6 is not novelty destroying because it does not contain one inner fibre.
7. Referring among others to the Court of Appeal’s decision in Meril v Edwards, the Court decides that the patent (claim 6) is inventive.
8. The Court finds literal infringement.
9. With respect to the period before the start of the UPC, the Court has to apply the national law with respect to infringement of the different countries but parties have not argued that that is different from the law of the UPCA.
10. The Court orders the payment of precise amounts (penalty sums) for not obeying the orders of the Court.

Comment

1. A counterclaim for revocation can be answered with (conditional) auxiliary requests and that answer can and should state why also the auxiliary requests are infringed (R. 30 RoP(1)(b) RoP). That is not to be considered as a change of claim or amendment of case under R. 263 RoP, because it is a lex specialis to R. 263 RoP.
2. The Court does not decide if this is also the case with respect to further auxiliary requests, which have only been filed during the interim proceedings, because such decision was not necessary in this case. According to R. 30.2 RoP, any further auxiliary request needs approval of the Court. In my opinion, the claimant, after having obtained approval, will in such a situation also be able to explain and add arguments why there is also infringement of that auxiliary request.
3. However, I think such further auxiliary requests should only be allowed in exceptional cases and the further infringement arguments (R.30(1)(b) RoP) should relate to the new elements of the claim added by the auxiliary requests. During litigation, a patent should not become a moving target for the defendant. The claimant had had all the possibilities, also during prosecution via an unlimited possibility of obtaining divisionals. In the litigation, he should be allowed to file a limited number of auxiliary requests and should bring all his infringement arguments during the proceedings as soon as reasonably possible.
4. Also in this case the claim interpretation was decisive for the case!

5. The Court followed the recommendation of the Court of Appeal in Belkin v Philips to mention specific periods for carrying out court orders and specific penalty sums in a case court orders are not complied with. This avoids further litigation if court orders are not complied with and about the amounts of penalty sums which then have to be paid!

    

25 February 2026
Local Division Munich, Ottobock v BrainPortfolio

UPC_CFI_1927/2025 

Provisional measures

The JR 

1. The JR sets a procedural regime for an application for preliminary injunction (“PI”) with an oral hearing on 10 April 2026.
2. No extensions will be granted, also not with the agreement of the other side.

Comment

In PI proceedings, the Local Division sets the dates for two rounds of submissions. This is not required under the Rules, but if the time until the Court can hold the oral hearing allows it, it makes for a good preparation for the oral hearing. 

26 February 2026
Court of Appeal, EOFlow v Insulet

UPC_CoA_34/2026 

Request for discretionary review

Facts

1. The Court of Appeal granted a preliminary injunction (“PI”) against EOFlow on 30 April 2025.
2. Insulet filed an application for the imposition of penalty payments. EOFlow filed two applications under R. 262.2 RoP regarding confidentiality of agreements with its European distributor Menarini, which had settled the infringement proceedings with EOFlow.
3. The Central Division had imposed € 150.000 in penalty payments and dismissed the requests based on R. 262.2 RoP.
4. The Central Division in Milan referred for the appeal of the penalty imposition to 
   R. 354.4 RoP (which refers to R. 220.2 RoP) and granted leave for appeal with respect to its refusal to grant the R. 262.2 RoP application.
5. EOFlow appealed both decisions.
6. On 4 February 2026, the Court of Appeal dismissed the appeal against the penalty order. The appeal against the dismissal of the R. 262.2 RoP request is still pending.
7. On 5 February 2026, EOFlow filed a request for leave for appeal against the penalty order.
8. The JR referred the case to the panel.
9. EOFlow asks for discretionary review of the penalty orders and leave for appeal against these orders and asks for a R. 262.2 RoP order.

The Court of Appeal

1. The application for discretionary review of the order imposing the fine is not possible. This is only possible with leave for appeal. EOFlow did not timely ask for leave for appeal.
2. There is no need for a confidentiality request.

Comment

1. The decision under 2 is correct in the sense that the R. 220.2 RoP request can still be made as soon as a member of the public asks for public inspection.
2. The decision under 1 is in my opinion quite harsh. Without doubt, the Central Division in Milan created confusion. In the same order, it granted leave for appeal with respect to the refusal to grant the requested R. 262.2 RoP order while with respect to the imposing of a penalty it stated: “Note. The imposition of a penalty is subject to appeal under R. 354.4 RoP.”.
3. Also the Milan Central Division has read that R. 354.4 RoP refers to R. 220.2 RoP. So in one case of your R. 220.2 RoP order it grants leave for appeal and in the other one it is silent, only stating that the order is subject to appeal under R. 354.4 RoP. What is now the intention of the Central Division Milan? Did they mean we refuse to grant leave for appeal, or did they imply with this sentence “as is the case for the other R. 220.2 RoP decision, you have leave for appeal”, or did they mean “if you want to appeal you need to ask for it”? Why do you say something about the leave for appeal with respect to one part in the order and do you not say anything with respect to the other part? Did the Central Division in Milan think the imposition of a fine is a formal decision, so you do not need leave for appeal? It is all rather confusing.
4. The JR reasons quite straightforward: R. 354.4 RoP refers to R. 220.2 RoP, so you have to ask for leave for appeal (according to the JR) within 15 days. That did not happen, end of story. Under the circumstances of the case and the confusion created by the Central Division, I find this not very satisfactory. If I would have been in the position of the JR, I would have simply said that the Central Division in Milan with its order apparently meant also to grant leave for appeal with respect to the penalty sums decision, but I am not a judge and educated in a (too) liberal judicial climate in which “reasonableness and fairness” can rather easily set aside the letter of the law or an unfair clause in an agreement. A penalty of € 150.000 is not peanuts!
5. The JR gives the decision, but in consideration 12 the JR states: the Judge Rapporteur has referred this case to the full panel. Of course, the JR can act for the panel, but I found this somewhat confusing.

27 February 2026
Local Division Mannheim, Irdeto v DJI

UPC_CFI_344/2025; UPC_CFI_735/2025

Fee for counterclaim

Facts

1. The claimant started an infringement action in April 2025.
2. Defendants 2-4 were served in April/May 2025.
3. They filed a Statement of Defence and a counterclaim for revocation on 13 August 2025.
4. Defendant 1, a Chinese company, was served only in November 2025 and filed a defence and counterclaim for revocation on 18 February 2026.
5. Defendant 1 did not pay the fee for the counterclaim for revocation, arguing that defendants 2-4 had already paid and that the contents of their counterclaim is identical.

The Court

This is not the same counterclaim (see R. 370.7 RoP). So you have to pay the fee!

Comment

It would have been easy for the defendants to discuss with the claimant streamlining the proceedings (the Chinese defendant appears voluntarily on the one hand and on the other hand all defendants get one or two months more for their defence). In this case apparently the Chinese defendant wanted to play for time and the result is that he has to pay the (extra) fee. That serves him right: excellent result!

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