# News Detail Share now [](https://www.linkedin.com/uas/login?session_redirect=https%3A%2F%2Fwww.linkedin.com%2FshareArticle%3Fmini%3Dtrue%26url%3Dhttps%3A%2F%2Fhoyngrokhgroup.com%2Fnl%2Fnieuws%2Fdetail%2Fupc-unfiltered-by-willem-hoyng-upc-decisions-week-23-2026%26title%3DUPC%20Unfiltered%2C%20by%20Willem%20Hoyng%20%E2%80%93%20UPC%20decisions%20week%2023%2C%202026%26summary%3D "Linkedin") # UPC Unfiltered, by Willem Hoyng – UPC decisions week 23, 2026 08 juni 2026 News Unified Patent Court (UPC) Hot Topic News Below, [Prof. Willem Hoyng](https://hoyngrokhgroup.com/our-team/legal-experts/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](https://mailchi.mp/8fbd8890d03b/upc-unfiltered-by-willem-hoyng) for weekly updates. Find all decisions, commentary and more on our [UPC Intelligence Platform](https://upcintelligence.hoyngrokhmonegier.com/). 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](https://open.spotify.com/show/53wwzF7LNSqqouR0wzXgJD?si=ae84739b09904ee1&nd=1&dlsi=71b6a174bdbd4f32) or [Apple Podcasts](https://podcasts.apple.com/us/podcast/willem-hoyngs-upc-unfiltered-ai-podcast/id1806092389). ##### **28 May 2026** ***(late published)*** **Local Division The Hague, KPN v Oleading** [UPC\_ CFI\_565/2024; UPC\_ CFI\_2246/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/final%20order%202246-2025%20KPN%20-%20Oleading%20et%20al%20-%20III%20exchange%20of%20licences%20and%20confidentiality%20REDACTED.pdf) *Disclosure of license agreements with others* **Order of the Judge-rapporteur (“JR”)** 1. No extra delay for Statement of Defence because the expert for the defendants already had access to the license agreements for a considerable time. 2. A special regime will apply for licenses with Apple. Apple will be notified by the defendant of the identity of any external expert to which they intend to provide the license agreement. Apple may lodge an objection within 5 days. The Court shall then decide how to proceed. 3. The Court applies the same confidentiality regime as is in place in parallel proceedings between the parties in Düsseldorf. **Comment** 1. The Court rightfully states that it wants the proceedings to be dealt with within a year, which means no further delays. 2. A special practical arrangement for Apple in order to meet Apple’s objections in granting access to license agreements to which it is a party. 3. This order has slightly been changed on 2 June 2026 at the request of the parties (see UPC\_CFI\_2246/2025). ##### **29 May 2026** ***(late published)*** **Local Division Copenhagen, Hybridgenerator v HGSystem** [UPC\_CFI\_560/2024; UPC\_CFI\_889/2025 ](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Afg%C3%B8relse%20af%2029.%20maj%202026%20-%20Anonymiseret.pdf) *Patent invalid and not infringed* **Facts** 1. Infringement claim against HGSystem et al. on the basis of EP 4 238 202 for a mobile hybrid generator. 2. Defendant 3, now the CEO of defendant 1, HGSystem, used to be a director of the claimant. 3. HGSystem filed an opposition on 13 May 2025. 4. HGSystem also filed a counterclaim for invalidity. 5. The claimant, Hybridgenerator filed 4 auxiliary requests. **The Court** 1. The claimant is the patentee and has standing to sue. 2. The Court has jurisdiction. 3. The Court defines the skilled person and discusses the patent. 4. The Court interprets the claims applying the principles of the Court of Appeal as laid down in its decision in *Nanostring v 10x Genomics*). 5. The Court rejects the argument that the patent is violating Art. 123(2) EPC. 6. With respect to sufficiency of disclosure, the Court refers to the Court of Appeal’s decision in *Amgen v Sanofi*. The Court states: *“The concept of “at least one way” is understood by the Court to mean that the description of one way of carrying out the invention is sufficient only if it enables the invention to be carried out within the entire claimed scope. More precisely, the description must enable a person skilled in the art to carry out the invention without undue burden within the entire scope of protection.”* 7. Claim 1 discloses two embodiments. The description does not explain how the first embodiment can be realized. Figure A makes it impossible to realize claim element 1.6. 8. The conclusion is that the patent cannot be carried out across the full scope of the claim. The patent is therefore invalid because it does not comply with Art. 83 of the European Patent Convention. 9. The second embodiment of claim 1 is not novel. 10. With respect to inventive step, the Court refers to its decisions in *Amgen v Sanofi* and *Nanostring v 10x Genomics*, and concludes for two different reasons that the patent is invalid. 11. The Court does not discuss the alleged public prior use by Hybridgenerator, as the patent is already invalid because of the reasons above. 12. The Court discusses the dependent claims, which are all not novel or not inventive. 13. Finally, the Court finds also non-infringement. **Comment** 1. In my opinion, the patent should have never been granted by the EPO. Quite frankly, I also cannot see why the claimant started these proceedings, as it was pretty obvious that defendant was not infringing. 2. Having said all this (and agreeing with the end result), I am not impressed by some of the reasoning of the Court, or, better said, absence of reasoning. I give two examples: 1. *“In claim 6 (…) the second alternative is described in the public use of Hybridgenerator.”* However, the Court had stated earlier that it would not consider the alleged public prior use. How can you then refer to it, if it has not even been established? 2. *“Claim 9 lacks inventive step in the light of common general knowledge.”* What common general knowledge, and why? ##### **1 June 2026** **Court of Appeal, La Siddhi v Athena** [UPC\_CoA\_48/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Order%20La%20Siddhi%20v.%20Athena.pdf) *Security for costs* **Facts** 1. La Siddhi filed a revocation action before the Central Division Milan. 2. At the request of Athena, the JR ordered security for costs of € 75,000 with leave for appeal. 3. La Siddhi appealed, arguing: 1. Athena did not prove that a cost order would be difficult to enforce; 2. The financial information Athena provided may be uncontested but is not sufficient evidence. This was also unfair because La Siddhi was not given the opportunity to provide further evidence. 3. The fact that the UK is neither part of the EU nor the Lugano Convention is no reason for concern that a cost order cannot be executed. 4. The JR failed to take its SME (small- and medium-sized enterprises) status into account. **The Court of Appeal** 1. The Court of Appeal refers to the legal framework (Art. 69(4) UPCA) and case law of the Court of Appeal (Court of Appeal, Order of 20 June 2025, *AorticLab v Emboline*, UPC\_CoA\_393/2025 and Court of Appeal, Order of 18 February 2026, UPC\_CoA\_889/2025). 2. In this case, Athena provided sufficiently detailed publicly available information. It is then up to the appellant to provide counter-evidence, which it did not. 3. The fact that La Siddhi is a micro enterprise (less than 10 employees; a turnover of less than € 2 million) is insufficient to set aside R. 158 RoP. Neither R. 158 RoP nor Art. 69(4) UPCA makes a distinction for SMEs, as certain other provisions do. 4. The fact that appellant was established in the UK did not play a role in the first instance decision of the Local Division. **Comment** 1. The Court (also) states that when establishing the security, a JR can take into consideration that the claimant is an SME. It also points to the option for an SME to apply for a lower ceiling for recoverable costs if it establishes that an award of costs would threaten its economic existence (Art. 2(2) to 2(5) of the Decision of the Administrative Committee of 24 April 2023). 2. This decision is useful guidance for SMEs: In principle SMEs will have to provide security for costs, but the amount can be influenced by the SME status and they can actively seek a lower ceiling. However, SMEs should realize that litigating without security will not be possible if their financial status is weak. As said before: if you have a good case, you can seek financing or try to find insurance. ##### **1 June 2026** **Local Division Düsseldorf, Boa v Shinkyung** [UPC\_CFI\_998/2025; UPC\_CFI\_738/2026; UPC\_CFI\_743/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-06-01-UPC_CFI_998_2025.pdf) [UPC\_CFI\_996/2025; UPC\_CFI\_737/2026; UPC\_CFI\_742/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-06-01-UPC_CFI_996_2025.pdf) [UPC\_CFI\_1141/2025; UPC\_CFI\_736/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-06-01-UPC_CFI_1141_2025.pdf) *Security* **Facts** 1. In the Statements of defence and counterclaim for revocation in these cases, defendant 2 requests for a security for costs of € 200,000. 2. The claimant, Boa, is a US company. 3. Defendant 2 focuses in its request on an alleged bad financial state of the holding company. **The JR** 1. The JR discusses the request, stating that the financial situation of the holding company is irrelevant, and that only the financial situation of Boa itself is relevant. 2. Boa (also) provides evidence showing that the fall in stock price of the holding company was due to special circumstances. It showed that the holding company earned USD 64.3 million in the last quarter of 2025. 3. The JR dismisses the request. **Comment** 1. Although one can put a question mark behind the consideration that only the financial situation of Boa (and not of the holding company) is relevant, the decision is correct as Boa showed that the information submitted was not up to date, and that it was good for its money. 2. This is a case without any German party that was filed in the very busy Düsseldorf Division. This is not helpful for an equal division of the workload over the whole Court. The claimant should not be surprised if such a busy Court will not render a judgment within 12-14 months. ##### **1 June 2026** **Local Division Hamburg, Fraunhofer v HMD** [UPC\_ CFI\_494/2025; UPC\_ CFI\_495/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/UPC_CFI_494%20and%20495_2025%20IC%20Summary%20and%20orders_redacted.pdf) *Results interim conference* **Facts** 1. The claimant alleged infringement with respect to EP 2 380 167 and EP 2 609 590. The defendant counter claimed for revocation. 2. The interim conference was held on 1 June 2026. **The JR** 1. The parties agreed on a litigation value of € 3 million for each patent. 2. The general course of the oral hearing on 2 and 3 June was indicated. 3. The JR identified the key issues of the case, including the FRAND defence. 4. The request of the defendant to file further pleadings with respect to the FRAND defence is rejected. It is justified that the claimant, who is the counter-defendant in a FRAND defence, has the final say in order to ensure a fair trial. 5. The JR proposed an agreement to the parties to fix the reimbursement costs at 75% of the ceiling. The parties stated to be open to the proposal pending confirmation by their client. **Comment** 1. I have the impression that a mistake was made with respect to the dates. It seems strange that the oral argument will take place on 2 and 3 June, after an interim conference on 1 June, during which the JR even gave the parties the possibility to further react in writing on certain points. Is it July 2 and 3? I assume the parties will know. 2. The JR already identified the key issues in the interim conference, which is of course helpful for the preparation of the oral hearing. 3. The course of the oral hearing as indicated is in my opinion the preferred one, which is: the Court starts with its preliminary opinion, after which the parties get some time to think about that in a break out room and only thereafter the oral argument starts. 4. Ideally, such a preliminary opinion should already be given earlier, but that seems not easy to organize. However, if during the interim conference the JR already indicates the key issues (as in this case), then that is certainly already helpful to the parties. Also, nothing prevents the panel from sending a message to the parties just before the oral argument with certain questions to be addressed. 5. On the other hand, a representative should be prepared and should be able to answer every question the Court may have. 6. The JR proposes to avoid cost proceedings etc. by simply agreeing to fix costs at 75% of the ceiling. Bravo! That is in line with what I proposed for a normal case after an amendment of the RoP! ##### **2 June 2026** **Court of Appeal, Kodak v FUJIFILM** [UPC\_CoA\_312/2025; UPC\_CoA\_333/2025; UPC\_CoA\_880/2025; UPC\_CoA\_882/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Decision%20312%2C%20333%2C%20880%20and%20882-final%202%20June%20signed%20%28P%29.pdf) ***Reversal Local Division decision*** **Facts** 1. The Local Division Mannheim had granted an injunction against Kodak for infringement in Germany and the UK of FUJIFILM’s EP 3 511 174. 2. Kodak appealed, arguing that: 1. the patent was invalid; 2. it did not infringe; 3. it was entitled to a prior user right in Germany; 4. the Court lacks jurisdiction for the UK; 5. it (the three Kodak defendants, which were all German companies) did not commit an infringement in the UK. **The Court of Appeal** 1. The Court of Appeal explains the patent (for a lithographic plate precursor) and the technical problems it solves. 2. The Court of Appeal defines the skilled person and interprets the claim, applying the principles formulated in the Court of Appeal’s decision in *10x Genomics v Nanostring*. It rejects Kodak’s interpretation of features 1.4 to 1.7. 3. The Court of Appeal rejects Kodak’s argument that “50% of the surface” in the claim can also mean a bit more than 50%. The Court states: “*There is no general rule that the skilled person would always and automatically take into account fluctuations which are due to the manufacturing process and the measurement method and in doing so would automatically add deviations to the – as such precise – numerical value in a claim feature. This may be a result of claim interpretation but is not inherent to the use of a numerical value in a claim*.” 4. Contrary to the Local Division, the Court of Appeal concludes that the invoked priority is not valid, as the embodiment of the patent is not disclosed in the priority document. The Court rejects FUJIFILM’s late submission. 5. There is no added matter. Kodak’s late arguments (which would have failed anyway) are rejected. 6. The invention is found new and inventive. With respect to novelty, the Court of Appeal points out: “*A feature may also be disclosed implicitly but this requires that the skilled person would objectively consider such feature to be necessarily implied in the explicitly disclosed content*.” 7. Everything that is submitted before, but disregarded by, the Local Division should not be automatically regarded by the Court of Appeal. However, if requested, the Court of Appeal can use its discretion to consider what was disregarded by the Local Division. 8. With respect to public prior use, Kodak’s new evidence on appeal is disregarded. Kodak could and should have presented this earlier. 9. With respect to inventive step, Kodak starts from an unsuitable starting point or fails to explain why the skilled person would undertake the step to arrive at the invention. 10. The Court of Appeal concludes that the patent is infringed in Germany. 11. In order to establish (private) prior use in Germany, the Court of Appeal applies German law, which is discussed in detail. 12. The Court of Appeal concludes that the Kodak companies are entitled to prior use rights in Germany. 13. The Court of Appeal rules that the UPC can deal with European patents (“EPs”), also for designations validated in territories outside the UPC territory (“non-UPC EPs”). The Local Division was right to accept jurisdiction for infringement in the UK based on Art. 4 Brussels *Ibis* Regulation (“BR”), referring to the *BSH v Electrolux* judgment of the Court of Justice of the European Union (“CJEU”) (CJEU, judgment of 25 February 2025, *BSH v Electrolux*, C-339/22, ECLI:EU:C:2025:108). 14. Accepting jurisdiction is not contrary to the TRIPS Agreement and must be distinguished from how this jurisdiction is subsequently exercised by the Court in view of the circumstances of the case. As such, the Court must also apply international law principles such as comity. 15. The Court of Appeal cites the following principles (emphasis added): *“302. In situations where the Court has jurisdiction to decide on the alleged infringement and remedies requested by the patentee based on a non-UPC designation of a European patent (EP), and where the defendant has – as a defence – asserted that the EP relied on is invalid, then:* *- where designations in the territories of Members States of the European Union (EU) and Signatories to the Lugano Convention (LC) are concerned (‘**EU/LC EPs**’), it follows from Art 24(4) Br I bis and Art. 22(4) LC that the Court shall not consider the validity of such patents, but as decided in BSH v Electrolux the Court does not lose jurisdiction to decide the infringement action based on such patents;* *- where designations in territories of non-EU and non-LC States are concerned (‘**non-EU/LC EPs**’), it follows from BSH v Electrolux that the Court can consider the validity of such patents in inter partes proceedings and the Court may on that basis decide the infringement action based on such patents.* *303. The Court of Appeal considers the following approach regarding actions based on EU/LC European patents and/or non-EU/LC European patents to be in line with BSH v Electrolux and international principles of law, including comity, for the following situations (I, II and III respectively):* **I.** a revocation action is lodged with the Court with respect to (a) EU/LC EP(s) and/or non-EU/LC EP(s) *304. The Court shall declare that it lacks jurisdiction to decide the action.* **II.** in an infringement action which is also based on (a) EU/LC EP(s) and/or non-EU/LC EP(s), and the patent in force in the UPC territory is considered invalid, but the attacked embodiment or process would infringe if it were valid *305. It will be appropriate for the Court to first offer the patentee the opportunity to withdraw the infringement action insofar as based on (a) EU/LC EP(s) and/or non-EU/LC EP(s) within an appropriate period of time.* *306. Where it concerns EU/LC EPs:* *a. if the patentee does not wish to withdraw the infringement action, and insofar a revocation action is not already pending with the relevant competent national court(s), it is appropriate to give the defendant the opportunity to file a revocation action with the relevant competent national court(s) within an appropriate period of time.* *b. if and to the extent that (a) revocation action(s) is pending, or the defendant has lodged such action(s), it is generally appropriate for the Court to use its discretion and/or case management powers (cf R. 295(l) and (m) RoP) to stay the infringement proceedings insofar as based on that EU/LC EP(s) until a final decision has been rendered in the revocation action(s) by the competent national court(s).* *c. if and to the extent that the defendant does not lodge such action(s) within the given time period, the Court must assume that the patent(s) is/are valid and shall decide the infringement action on that basis.* *307. Where it concerns non-EU/LC Eps:* *a. if the patentee does not wish to withdraw the infringement action, the infringement action shall be dismissed, unless there are specific reasons not to do so (e.g. because the claim(s) of an extra-territorial part is different and may be considered valid – in such a situation the next paragraph applies)* **III.** in an infringement action which is also based on (a) EU/LC EP(s) and/or non-EU/LC EP(s), and the patent in force in the UPC territory is considered valid and infringed in the UPC territory *308. Where it concerns either EU/LC EPs (in view of Art. 24(4) Br I bis and 22(4) LC) or non-EU/LC EPs (in view of comity):* *a. the Court may – where appropriate and in order to avoid undue delay – consider there is a reasonable, non-negligible possibility that the patent will be held valid by the competent national court and issue a decision including its orders under the condition subsequent that the patent is not held to be wholly or partially invalid to the extent the infringement is based thereon in first instance or appeal proceedings before the national court competent to hear the revocation case in relation to such an EP (R. 118.2 RoP and Solvay v Honeywell (C-616/10) mutatis mutandis).* *b. if such a competent national court holds the patent to be valid, then the decision including its orders stays in place with the condition subsequent; if the decision is final, the injunction becomes permanent.* *c. if such a competent national court at first instance or on appeal holds the patent to be wholly or partially invalid to the extent the infringement is based thereon then the under which the decision, including its orders, was issued is not fulfilled and it falls away.* *d. In the case under c. the patentee may request the Court for orders consequential on such a decision within two months of the decision of such a competent national court (R. 118.4 RoP), including a request for a stay of the proceedings until a final decision is rendered by the competent national court.”* 16. There is no infringing act by the (German) Kodak companies in the UK. The title to the goods passes in Germany. The fact that the German companies arrange transport of the goods to the UK *on behalf of Kodak Ltd.* does not qualify as “import” under UK law. Such act also does not amount to “*joint tortfeasorship*” under UK Law. **Comment** 1. This Court of Appeal decision once again shows the importance and danger of frontloaded proceedings. Many arguments that were not brought or brought late in first instance are rejected. Hence, the first phase of proceedings, the Statement of Claim and Statement of Defence, are extremely important. 2. Nevertheless, if certain facts are stated in the early phase and arguments to establish such facts have been made, making further new arguments (*in response to* counter-arguments made by the other party) is fine. 3. If the Court of First Instance disregards evidence or arguments, these will not be considered by the Court of Appeal either, except if after a specific request, the Court of Appeal uses its discretion to consider the disregarded subject matter. 4. It is not surprising that the Court of Appeal states that the UPC can deal with EPs in general. This is not only quite clear from the UPCA, but also confirmed by the opt-out rules. An opt-out has to be done with respect to all countries where the EP is valid. 5. Interestingly, on cross-border jurisdiction, the Court of Appeal states that the fact that the Court has jurisdiction does not exclude that it applies the (unwritten) international law rules of comity. 6. That means that the UPC can decide whatever they want with respect to cross-border cases, by using (vague) comity rules as an excuse. This makes the whole cross-border practice unpredictable, as long as there is no guidance of the Court of Appeal. 7. However, the fact that the Court of Appeal did *not* apply comity in the case at hand, but gave a list of what to do in different situations under Art. 4 BR, in my opinion shows that in these cases (pertaining to defendants established in the UPC), the “comity escape” will generally not apply. 8. It may play a bigger role in the scenario of Art. 8(1) BR (pertaining to co-defendants) to avoid cross-border injunctions with respect to, for instance, the UK against UK companies, save perhaps where UK subsidiaries of UPC companies are concerned. 9. Although the Court of Appeal is completely right in that the *Owusu* judgment of the CJEU (CJEU, judgment of 1 March 2005, *Owusu*, C-281/02, ECLI:EU:C:2005:120, paras 36 ‒ 46) dealt with the *forum non conveniens doctrine*, I wonder if the reasoning of *Owusu* cannot be applied to comity as well. I cite no. 41 and no. 43 of the *Owusu* judgment: “*41. Application of the forum non conveniens doctrine, which allows the court seised a wide discretion as regards the question whether a foreign court would be more appropriate forum for the trial of an action, is liable to undermine the predictability of the rules of jurisdiction laid down by the Brussels Convention, in particular that of Article 2, and consequently to undermine the principle of legal certainty, which is the basis of the Convention.”* *“43. Moreover, allowing forum non conveniens in the context of the Brussels Convention would be likely to affect the uniform application of the rules of jurisdiction contained therein in so far as that doctrine if recognized only in a limited number of Contracting States, whereas the objective of the Brussels Convention is precisely to lay down common rules to the exclusion of derogating national rules.”* 10. However, I think that the EU is (or should be) bound by the unwritten international law rules that govern the extent to which a foreign court should be able to deal with questions which play in a different jurisdiction. If the EU does not abide by international comity rules, how can we then reproach the UK or China if they do the same? Hence, the conclusion has to be that the Court of Appeal is correct in making a clear distinction between *forum non conveniens* considerations and comity rules. 11. What the Court of Appeal states under “I” speaks for itself. The UPC has no jurisdiction as to revocation (*erga omnes*). However, this does not exclude an action for a declaration of non-infringement against a patentee residing in the UPC, in which the validity of a non-EU EP is challenged *inter partes*. For instance: A alleges that B is infringing its patent in the UPC and the UK. B starts a declaration of non-infringement / revocation action before the Central Division, arguing that it does not infringe, among others because the European patent is invalid. The Court can deal with the validity challenge with respect to the UK part of the European patent *inter partes*. 12. With respect to “II”: 1. I understood that the Court will give the patentee the possibility to withdraw the infringement claim with respect to non-UPC EU/LC parts of the European patent(s) in order to avoid an injunction for these countries, as with respect to non-UPC EU/LC countries the Court cannot (not even *inter partes*) deal with the invalidity defence (that in this scenario prevailed for the UPC EU/LC parts of the European patent(s)). 2. With respect to non-EU/LC countries, the Court *can* rule *inter partes*. Normally, that would lead to a refusal of the injunction, even though the patentee may think that the Court in that non-EU/LC country may rule differently on invalidity. However, the fact that the patentee has lost on infringement with respect to the non-EU/LC country, may mean that that decision will also be recognized in that non-EU/LC country. Hence, even if the court of that country holds the patent valid, the patentee cannot do anything about the establishment of infringement in that country. 3. In considerations 306 and 307, the Court clarifies what should happen if the patentee does not wish to withdraw the infringement action. For non-UPC EU/LC parts of the European patent(s), it follows from 306 that the defendant gets the opportunity to avoid the injunction by having the non-UPC EU/LC parts of the European patent revoked by the appropriate court. For non-EU/LC European patent(s), it follows from consideration 307 that the UPC will simply apply its judgment as issued for the UPC and hold the patent *inter partes* invalid, except if there are special reasons not to do so. What is stated in consideration 308 speaks in my opinion for itself. ##### **2 June 2026** **Local Division The Hague, KPN v Oleading** [UPC\_CFI\_502/2024](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/order%20to%20stay%20502-2024%20KPN%20-%20Oleading%20et%20al%20-%20I%202.pdf) ***Stay pending review by the EPO Enlarged Board*** **Facts** 1. The invoked patent 2 387 844 has been revoked by the Board of Appeal of the European Patent Office (“EPO”). 2. KPN filed a petition for review with the Enlarged Board of Appeal of the EPO. 3. The parties ask for a stay. **The JR** The JR allows the stay. **Comment** This seems the right course of action for all parties involved, even if it in all likelihood will not lead to a decision within 12-14 months. A petition for review of a decision of the EPO Board of Appeal can only be successful on very limited grounds, such as fundamental violation of the rights to be heard, a severe procedural defect, or if a criminal act (e.g. fraud) influenced the decision. The likelihood that the patent stays revoked is thus very high. In those circumstances, requiring the parties to continue UPC proceedings against their will - and, in particular, requiring the Court to spend time on such a case – seems like a waste of effort. ##### **3 June 2026** **Local Division Hamburg, Sun Patent Trust v Lynk & Co et al.** [UPC\_ CFI\_1661/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Withdrawal%201661-2025%20.pdf) ***Settlement*** **Facts** 1. This concerns an infringement action started by Sun on the basis of EP 2 618 514 against car manufacturers (Lynk & Co, Zeekr, Lotus, Smart). 2. The parties settled. The claimant requests to withdraw its claim. The defendant agrees. 3. The parties agree on costs. 4. The claimant asks reimbursement of 50% of the court fees. **The Court** The Court grants the requests. **Comment** Sun (apparently) used the start of UPC proceedings (and the associated threat of stopping the sale of cars?) to have the defendants sign an agreement! ##### **4 June 2026** **Local Division Brussels, Labs v GC Aesthetics** [UPC\_ CFI\_629/2025; UPC\_ CFI\_1357/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Order_R_263-3-R.361_Signed.pdf) ***Request to limit claims*** **Facts** 1. Referring to R. 263.2 RoP, Labs applied for permission to limit its claim by withdrawing the claim against four defendants with respect to the UK. 2. This application was filed after the Brazilian GC Aesthetics filed a revocation action in the UK, in which a counterclaim was filed. **The Court** 1. As Labs limits its claim unconditionally, by withdrawing the UK portion of the infringement action, leave has to be granted under R. 263.3 RoP. 2. R. 265 RoP is not applicable because Labs is not withdrawing its action (the other claims, not relating to the UK infringement action, are maintained). 3. R. 361 RoP may lead to a decision by way of order, if the action or defence is in whole or in part manifestly inadmissible or lacking any foundation in law. 4. There are no longer any claims pending after the limitation against defendants 1 and 10. The infringement action against these defendants thus lacks any foundation in law. 5. Making a cost decision is impractical and not in line with procedural efficiency. **Comment** 1. In my opinion, this decision lacks a proper establishment of the factual background, making it difficult to understand. 2. What seems clear is that the claimant, confronted with a revocation action in the UK, preferred to withdraw all infringement claims for the UK. It is not quite clear why the claimant wanted this; there was certainly no need to do so. The decision states that the claimant filed a counterclaim in the UK without detailing what this was about. Perhaps, being confronted with a revocation case in the UK and having to fight this (expensive!) battle in the UK anyway, the patentee felt that it might as well fight the infringement in the UK as well. 3. I understand that two of the defendants were sued for infringement in the UPC and in the UK. The claimant then unconditionally limited its claim to the infringement in the UPC. The Court granted that on the basis of R. 263.3 RoP, which seems correct. 4. The two other defendants were only accused of infringement in the UK. The Court decides that R. 265 RoP is not applicable. That seems strange. Apparently, the Court considers all the claims against all ten defendants as one action. In my opinion, that is wrong. The claimant sought the complete withdrawal of the actions against two defendants. The way to do that is via R. 265 RoP. 5. As to costs and R. 263.3 RoP, no decision is needed as the case continues against these two defendants. 6. With respect to R. 265 RoP, the Court could simply have stayed the decision on costs until the decision on the merits. **– All comments above are** [**Prof. Hoyng**](https://hoyngrokhgroup.com/our-team/legal-experts/prof-willem-hoyng "https://hoyngrokhgroup.com/our-team/legal-experts/prof-willem-hoyng")**‘s personal opinions –**