UPC Unfiltered, by Willem Hoyng – UPC decisions week 26, 2026

16 June 2026 (late published)

Local Division Munich, Handtmann v Vemag

UPC_CFI_184/2025; UPC_CFI_549/2025

Infringement decision

Facts

1. Infringement/revocation actions with respect to EP 3 106 035 relating to equipment for the food industry.
2. Defendant argues that the patent is not novel because of public prior use and not inventive.
3. The Court had encouraged parties to settle but was not successful.
4. Claimant eventually relied on auxiliary request 2 which meant that the public prior use defence was no longer maintained and that the witnesses for that defence were not heard.

The Court

1. The Court interprets certain claim features and does not accepting the reading of defendants. The Court states that the defendants’ invocation of the Opposition Division’s decision is not relevant because it does not relate to the disputed interpretation.
2. As the claimant is only maintaining auxiliary request 2, the revocation is only partly successful as far as the original version of the patent is concerned.
3. With regard to revocation, the Court states that the defendant did not argue lack of inventive step with respect to auxiliary request 2 in its written statements. The arguments made during the oral hearing are too late. Furthermore, the defendant has failed to explain why their chosen starting point is a realistic starting point. Finally, the defendant has not argued why the skilled person would implement the measures which would result in the inventive machine.
4. The Court concludes that there is literal infringement.

Comment

1. Did the defendants realize that they were litigating in the UPC and not in national proceedings, and had they studied the case law of the Court of Appeal? They should have known that it is not possible to begin discussing inventive step (with respect to auxiliary request 2) for the first time during the oral hearing. They also should have known how to approach the discussion of inventive step in the UPC: the starting point should be realistic, and there should be a clear incentive for the skilled person to combine prior art documents, or more generally, to implement the measures that lead to the inventions. 
2. In the infringement case, claim interpretation is again decisive. The Court does not state that you cannot refer to the prosecution history for claim interpretation, but this is of course ineffective if what you refer to is not relevant to the claim interpretation in question. 
3. The defendant did not dispute the € 50.000 demanded as provisional damages, nor the publication of the decision in three trade journals. The decision does not explain why the latter is necessary and proportionate.
4. This is all the more so as all companies who bought infringing products will have to be sent a letter referring to the decision and requesting the return of the infringing goods.
5. In the modern era of recycling and re-using, it seems a better solution than destruction to convert products in stock and returned ones into non-infringing products. However, the reason here was not that defendant had argued that destruction was not necessary and not proportionate, but rather because the ecologically responsible claimant did not request it, and the Court cannot award more than what is requested.

16 June 2026 (late published)

Local Division Paris, Orange v HMD

UPC_CFI_713/2025; UPC_CFI_301/2025

Result of interim conference

Facts

1. Infringement action based on EP 2 345 029 and counterclaim for revocation.
2. Interim conference (IC) held on 8 June 2026.
3. The Judge-Rapporteur (JR) had previously sent a brief to the parties with the main issues of the case identified by the JR.

The JR

1. No room for a settlement at present.
2. Total value of the case: € 3 million.
3. The parties agreed (subject to approval by clients) on a fixed amount for the recoverable costs, namely 75% of the ceiling.
4. The JR requested a consolidated document setting out the operative parts of the requests at the closure of the written proceedings.
5. The parties asked for a confidential oral hearing because of FRAND issues. 
   The JR decided to hear the validity and infringement discussions in public (7 July) and the FRAND discussion behind closed doors (8 July). 
6. The parties agreed with the JR’s detailed list of main legal points.
7. The JR set the timeframe for the oral hearing.
8. The JR confirmed, as a principle, that the defendant is free to make the revocation case conditional at the hearing under R. 263.3 RoP.

Comment

1. This is another example of an interim conference as it was meant to be in the RoP!
2. With two parties willing to agree on costs and a defendant who is considering making the counterclaim conditional on a finding of infringement. However, I do not understand why it was not turned into a conditional claim much earlier, as this decision seems to me to be only dependent on whether there is a more general interest in having the patent revoked (beyond serving as a non-infringement argument). 
3. 3 questions:
   1. Wouldn’t it be good to also have the Technically-Qualified Judge (TQJ) present during the IC? (if that was in fact the case then it would be good to mention it). 
   2. Did the JR ask the parties before the IC to list the points they wanted to discuss during the IC?
   3. Did the JR offer any provisional views? Such a preliminary assessment can of course be indirectly inferred from the different questions that the JR suggested to address during the oral hearing.
4. I think that parties generally like it when the Court expresses some preliminary views about the case at least at the start of the hearing. In this case, the Presiding Judge is planning to give an introduction at the start of the hearing, which will provide an opportunity for this! However, if the JR (who in this case had clearly studied the case in detail) has some questions or preliminary views (most certainly if the TQJ is involved at this stage), it is preferable for the parties’ preparation of the oral hearing that these are expressed already at the IC. 

18 June 2026 (late published)

Local Division Munich, ASC v Motorola

UPC_ CFI_798/2025

Confidentiality

Facts

1. The claimant is suing defendants for infringement of EP 3 016 464.
2. The defendants raise a FRAND defence, which they elaborate on in their rejoinder. With their rejoinder, they wish to produce license agreements with third parties as well as the negotiating history between parties.
3. For that reason the defendants request a confidentiality order for which they have produced a detailed list of what should be kept confidential.
4. The claimant also wants access to information labelled “highly confidential” for its experts.

The JR

1. The JR decides that the manager of claimant and two members of the Ankura consulting group get access to the highly confidential versions.
2. The JR notes that confidentiality for the public is not necessary as the public has no access and in the future this can be obtained with a R. 262.2 RoP confidentiality request.

Comment

1. For a good defence, it seems necessary (and therefore reasonable) that defendants can use experts. However, it is perfectly reasonable to limit access to two named experts. If I understand the order correctly, it is possible for the experts to request access for associates who need to conduct research. This also seems reasonable. What is unreasonable is to demand access for unnamed experts of a huge consultancy group.
2. I think that the case law with respect to confidentiality in SEP cases is pretty clear by now (see for an extensive overview the order of the JR). Therefore, I think that it should be possible for reasonable representatives to reach an agreement without having to ask the judge to do the work. This case is a good example. I think that the outcome was reasonable and therefore also clearly predictable!

22 June 2026

Court of Appeal, Valeo v Robert Bosch

UPC_CoA_4/2026; UPC_ CoA_13/2026

Preliminary objection – UPC internal jurisdiction

Facts

1. On 16 December 2025 (the decision erroneously states 2026), Valeo started an infringement action in the Paris Central Division with respect to infringement in Germany, Belgium and France against defendants established both inside and outside of the UPC territory.
2. The 4 defendants established within the UPC lodged a preliminary objection (PO) arguing that the Central Division was not competent.
3. The Paris Central Division upheld the objection. It found that the option of the last paragraph of Art. 33(1) UPCA, according to which actions against defendants based outside the UPC may be brought before the Central Division is not applicable where the defendants are not all based outside the UPC (as in this case). It reached this conclusion by considering that this rule, applicable to non-UPC defendants, does not provide an “anchor” defendant for defendants domiciled within the UPC (in the sense of the last sentence of Art. 33(1)(b), which is an exception and as such can only be applied to defendants mentioned under “b”).
4. Valeo appealed. 

The Court of Appeal

1. Art. 33 UPCA deals with the internal competence of the different divisions and is governed by UPC law (and not by the Brussels I bis Regulation (BR) or Lugano Convention about international jurisdiction).
2. Art. 33(1) UPCA provides for two jurisdictional bases: the place of infringement and the domicile of the defendant.
3. When based on the domicile of the defendant, there are three possibilities:
   1. the Local Division hosted in the UPC country where the defendant is domiciled has jurisdiction;
   2. if there is no Local or Regional Division linked to the UPC country where the defendant is domiciled, the Central Division has jurisdiction (and of course the Division where the (threat of) infringement takes place);
   3. if the defendant is domiciled outside the UPC, the Central Division is competent (and again the Division where the (threat of) infringement takes place).
4. In case of a plurality of defendants, the domicile criterion applicable to one of the defendants domiciled in (the area of) a Local or Regional Division (the anchor defendant) extends to all defendants assuming that there is a commercial relationship between them.
5. The Court of Appeal reverses the decision of the JR and rules that the Paris Central Division is competent because the last sentence of Art. 33(1)(b) UPCA also applies to a situation where the Central Division is competent because a defendant is domiciled outside the UPC. 

Comment
(note: points 4 to 17 of the decision are not relevant for daily practice)

1. This is an important decision as it opens up many more possibilities for forum shopping. All cases against manufacturers in non-UPC countries and their subsidiaries, importers and resellers can be brought before the Central Division and, as most of the patents are granted in English (80%), also in the English language. What is necessary is (the threat of) infringement in the UPC by the non-UPC domiciled company. As we now know, also acts of indirect infringement are seen as infringement (CoA, 3 October 2025, UPC_COA_534/2024, Philips v Belkin), which further expands the possibilities for the forum shopping.
2. The decision looks logical and pragmatic: all the claims against the different defendants can be dealt with in the same proceedings and conflicting decisions can be avoided.
3. However, even if the decision of the Local Division Paris would have been upheld, the claimant would not have been prevented from having the UPC dealing with all the defendants in one case: it could have sued all defendants in one of the Local Divisions of Germany, Paris (also in French) or Brussels, where some of the defendants are based. 
4. Although the decision is practical and I welcome it, I have my doubts as to whether it  is also legally correct. I do not think that this is what was intended by the drafters of the UPCA, although their task proved to be so complicated (by trying to satisfy also the bifurcation adepts) that they may not have thought about the case that was decided here by the Court of Appeal. 
5. In the version of the UPCA which I use (the trilingual version compiled by Pierre Véron), I see that under Art. 33 UPCA, the sentence “An action may be brought against multiple defendants only where the defendants have a commercial relationship and where the action relates to the same alleged infringement.” sits in the paragraph starting with b (which is the third paragraph under (1), preceded by the introductory paragraph for “a” and “b” and the paragraph starting with “a”). Within paragraph (1), this sentence is followed by another one starting with “actions referred to in Art. 32(1)(h)…”.
6. It is therefore clear to me that the quoted sentence is no stand-alone third paragraph under Art. 33(1) UPCA but that it is only the last sentence of Art. 33(1)(b) UPCA which follows immediately after what I would call the classic anchor defendant, i.e. the defendant who is sued in their home Local Division (or the Nordic/Baltic Division if they are established in the countries participating in that Regional Division).
7. The competence of the Central Division with respect to non-UPC defendants is not mentioned there and also has nothing to do with a defendant being sued in their “home” Local Division.
8. On the contrary, under the Brussels I-bis Regulation and Lugano Convention, you can sue a non-UPC defendant in the court of the place of infringement. However, such a defendant cannot serve as an anchor defendant.
9. It is true that said Regulation and Convention deal with international jurisdiction and not with internal competence. It is also true that the whole provision which, in addition to the place of infringement (Art. 33 (1)(a) UPCA), creates an extra option for competence with respect to non-UPC defendants cannot be found in the Brussels I-bis Regulation or Lugano Convention, nor in (most) national systems, as far as I know. Consequently, in that sense, we are somewhat in unchartered waters. As a court, you may have some liberty to make sense of it all.
10. However, the fact that the concerned paragraph with respect to co-defendants does not sit in a separate paragraph but is only part of the third “b” sub-paragraph, as well as the fact that the competence of the Central Division with respect to non-UPC parties is clearly separated from that third sub-paragraph and is stated in its own paragraph, makes it quite a daring (possibly contra legem?) interpretation to consider the quoted sentence also applicable to non-UPC companies.  
11. On the other hand, the drafters of the UPCA also had to think about countries which have no Local Division (and are not part of a Regional Division either) (such as Romania, Bulgaria, Malta and Luxemburg). Therefore, one could say that they made the Central Division the home division for these countries in the last paragraph of Art. 33(1) UPCA.
12. We are now faced with two possibilities:
    1. considering that, since the competence of the Central Division is not mentioned under the third (“b”) paragraph of Art. 33(1) UPCA (plurality of defendants), the non-UPC defendant in such case before the Central Division cannot be considered to function as anchor defendant; or
    2. there is a drafting error and the competence of the Central Division with respect to UPC domiciled defendant without own local/regional division should also have been mentioned in the third “b” paragraph because the defendant is a defendant sued in their “home” division. The drafters of the UPCA did not intend to deal differently with, on the one hand, a defendant who is sued before a German Division because it is domiciled in Germany and, on the other hand, with a defendant that is sued in the Central Division because it is domiciled in Malta. This means that you should consider the last sentence of the third paragraph to also apply to the defendant established in the UPC that is sued in the Central Division.
13. We end up in a situation where: a defendant domiciled in a UPC Member State without a Local or Regional Division is sued in the Central Division which we consider as an anchor defendant, but a non-UPC defendant sued in the Central Division we do not consider an anchor defendant.
14. This would have been, in my opinion, the correct solution from a dogmatic point of view. That was my position already when I commented on the decision of the JR of the Central Division.
15. However, if you take the practical view, as the Court of Appeal did, also the UPC-based defendants, sued with non UPC defendants, do not have to be sent away to another division with the possibility of conflicting judgments.
16. A further practical advantage I see is that it gives litigants more options to go to the (under-used) Central Division and avoid filing in the already very busy German Divisions.
17. In the end, I think that the Court of Appeal’s decision (although dogmatically possibly incorrect) should nonetheless be welcomed!

22 June 2026

Court of Appeal, Robert Bosch v Valeo

UPC_CoA_50/2026

Preliminary objection – commercial relationship between defendants

Facts

1. Valeo sued 6 Bosch companies in the Paris Central Division.
2. Bosch raised a preliminary objection, disputing the Court’s competence as far as the 4 Bosch companies domiciled in the UPC are concerned (see the case reported above) and a preliminary objection complaining that the Paris Central Division (both through the JR and in review proceedings) accepted a commercial relationship with respect to the same infringing acts between the non-UPC defendants (the anchor defendants) and the other UPC defendants.

The Court of Appeal

1. The “commercial relationship” condition implies the existence of a relationship between the defendants with respect to commercial activities concerning an allegedly infringing product or group of products, such as research, manufacture, sale and distribution of such product(s).
2. Belonging to the same group of companies can create such commercial relationship when the activity of each defendant relates to the allegedly infringing (group of) product(s).
3. Such relationship can be direct or indirect, possibly involving a third party. The activities may relate to the same or a different chain of production.
4. The decision as to whether such a relationship exists is made by a summary assessment by the JR.  
5. The second requirement is that the disputed activities of the different defendants relate to the same infringement. Here, there was no evidence that the products of the different defendants were materially different.
6. The appeal is dismissed.
    

Comment

1. The Court opts for a rather broad concept of commercial relationship. It suffices that all defendants (belonging in this case to the same corporate group) deal in one way or the other in the same or a similar infringing product.
2. In my opinion, the notion of “same infringing product” depends on the technical assessment of infringement. It is not important that one defendant is manufacturing and another one is selling. The products do not have to be exactly the same. However, the product is the same where it raises the same questions with respect to the assessment of technical infringement. The fact that there is a slight difference (e.g. here to fit the different car models) is not important!
3. Parties who want to raise a preliminary objection will have to bring convincing arguments to make a decision in these type of prima facie proceedings possible. They should realize that the Court of Appeal has adopted a rather liberal attitude in doing so, making it possible to avoid multiple litigation as much as possible. 

22 June 2026

Local Division Munich, Nokia v Acer

UPC_CFI_293/2025; UPC_CFI_868/2025

Return of court fees
 

Facts

1. Infringement action based on EP 2 661 892 and counterclaim for revocation.
2. The written proceedings ended on 12 June 2026 and the interim proceedings are scheduled to end on 15 June 2026.
3. The oral argument was set for 17 June 2026.
4. On 12 June 2026, the claimant filed for withdrawal and requested that 50% of the court fees be refunded. On 15 June 2026, the defendant agreed, withdrew its counterclaim and requested the refund of 40% of its court fees.

The Court 

1. The Court affirmed the withdrawal. As parties agreed to bear their own costs, no cost decision was necessary.
2. The Court referred to the case law of the Court of Appeal that the new rules for reimbursement of court fees are applicable to requests made after 1 January 2026.
3. The defendant who filed its request after the closure of the written proceedings is not entitled to reimbursement.
4. With respect to the claimant, the Court of Appeal applied R. 370.9(e) RoP which provides for exceptions to costs reimbursement in special cases.
5. The Court refers to the fact that the written procedure had ended, apart from the fact that the claimant had requested to file a further pleading (R. 36 RoP). The Court also observes that the TQJ and the JR had already expressed their views about the case, with the exception of the competition point, for which a further pleading was expected.

Comment

1. I fully agree with this decision and the much detailed motivation of the Court. In fact, I do not understand why the parties asked for reimbursement considering the clear case law which in my opinion ruled out a reimbursement. Why cause the Court unnecessary work?
2. However, the way these proceedings were carried out has not much to do with UPC proceedings, but they look more like German national proceedings.

3. I am not criticizing the fact that, in a dispute between two non-German companies, the representatives chose the German language. Under the UPCA, this is allowed and, if their clients do not mind that everything is done in German, that is fine. I note that the Court expected another written statement a few days before the oral hearing. That makes me think of German national proceedings, where I have seen written statements being filed the day before the hearing on the merits. De facto, there has not been an interim procedure, let alone an interim conference. In my opinion, this is not the way UPC proceedings were intended. It may be that the Court, which is notoriously very busy, feels compelled to deal with cases in this less time-consuming way in order to be able to hand down judgments within 12-14 months. Although I do admire the commitment and hard work of the judges in such busy Divisions, I think t it would be preferable to have the (sub)registry tell the claimant that the Division is very busy and to advise them to file in the Central Division or in The Hague Division (there was a Dutch defendant in this case) or, if they wanted to proceed in German, in the Vienna or Brussels Division if the facts allow it. If a claimant insists on filing in a busy Division (as their clients are entitled to do), clients should expect that the aim of the Rules of Procedure, to have a decision in 12-14 months, may not be realized. However, the claimant cannot expect that judges are forced to not apply the Rules as intended.

    

22 June 2026

Local Division Lisbon, Illumina v Element Biosciences

UPC_CFI_1920/2025

Hearing dates

Facts

Infringement action and counterclaim for revocation.

The Court

1. The Court will hear both the infringement action and the counterclaim together.
2. The interim conference will be on 16 October 2026 at 9.30 a.m. (Lisbon time).
3. The Parties are invited to submit topics for the interim conference by 6 October 2026.
4. Oral hearing on 17 December 2026 at 9 a.m.

Comment

1. An interim conference two months before the oral hearing is very good timing because it allows certain submissions (considered necessary during the interim conference) to be made and questions to be answered before the oral hearing. A period of two months is about the perfect time window to be able to make the intended use of the interim conference, which is to have the case ripe for the oral argument. In turn, this allows to have a hearing of no more than one day, as some issues have already be dealt with.
2. Lisbon time is CET minus 1 hour! The Helsinki Local Division is CET plus 1 hour. All other Divisions and the Court of Appeal are on CET time. Although R. 300 RoP is silent about what time to apply, you should use the time zone of the Local Division for calculating procedural time limits such as filing an appeal. It means that, if in Luxemburg a 15-day time limit (e.g. R. 221 RoP) has expired, you still have an hour to file an appeal if it concerns an order of the Lisbon Division! 

22 June 2026

Local Division Düsseldorf, Evac v Shanghai

UPC_CFI_811/2024

Indirect infringement / Limitation period

Facts

1. Infringement action based on EP 1 840 282 (EP 282) and EP 1 813 734 (EP 734).
2. Priority of 31 March 2006 (there is a typo in the decision). 
3. The patents are each validated in a number of countries. One expires on 8 February 2027, the other on 15 December 2026. The patents were granted in 2015 and 2016.
4. The patents relate to vacuum sewer systems (you may have experienced them in toilets on ships or trains).

The Court

1. The Local Division in Düsseldorf has international jurisdiction on the basis of Art. 4 Brussels I-bis Regulation with respect to defendant 2 because that defendant is domiciled in Hamburg, Germany.
2. Defendants 1 and 3 did not raise any objection with respect to the lack of jurisdiction. Art. 7(2) Brussels I-bis Regulation is applicable which gives jurisdiction for all UPC countries where the patent is validated and claimed to be infringed.
3. The Court defines the skilled person. 
4. The Court decides that the infringing acts continued after 1 June 2023 and that the UPCA therefore should be applied to the question of infringement. 
5. However, the outcome would also be no different if national law were applicable, because the claimant has extensively dealt with the national laws of the different countries and defendants did not react.
6. The Court finds literal infringement of EP 282.
7. The Court states that defendant 1 (the Chinese company) has infringed in Germany because of the test purchase organized by the claimant in 2021.
8. The allegation that defendant 1 delivered the (infringing) product (result of the test purchase) to the claimant is not relevant as the infringing product was not delivered to the claimant but (first) to a third party.
9. Defendant 3 is responsible as the director of defendant 1. This is as such not enough for patent infringement. However, in this case the director had an active role as he signed invoices which related to the test purchase. 
10. Defendant 2 did not exist yet at the time of the test purchase and there is no evidence that it committed infringement. The claimant also failed to bring evidence of threatened infringement. 
11. With respect to EP 734, the Court finds indirect infringement. 
12. The Court notes the following with respect to the question whether or not the vacuum buffer is an essential element of the invention: in general, all the elements of the claim are essential to the invention, whether they sit in the characterizing part of not. 
13. The delivery took place in Germany and there is no reason not to believe that it was used to implement the invention in a UPCA country where the patent is in force. It is not necessary to prove that the essential element is sold to the end user.
14. The Court states that the replacement of a part of the patented product which is supposed to be replaced during the lifetime of the product is normally allowed, unless the replacement would amount to making the product anew, which becomes true if the technical effect of the invention is realized by the exchanged elements. That was the case here.
15. The statute of limitation is not relevant for an injunction for the future. That is also the case if the infringement has taken place a long time ago.
16. The Court holds that it is irrelevant that the replacement parts of defendant 1 were sold to the claimant because the latter ceased to buy them in December 2021. As of that point in time, the claimant did not give its consent for reproducing the invention. Even if after that point (December 2021), no infringing acts took place, the claimant still has an interest in obtaining an injunction. 
17. The Court states that defendants 1 and 3 are liable for damages as they should have known that they were infringing.
18. The Court holds that the liability for damages reaching back to 2015 is not prevented by Art. 72 UPCA on the statute of limitation. In this case, the starting point of the 5-year limitation period of Art. 72 UPCA is August 2021, i.e. the date of the test purchase.
19. As to the unreasonable delay (laches) raised by the defendants, the Court responds that it is unclear if this can be invoked under the UPCA but, applying the German law, this defence has to be rejected. The defendants could not conclude from the fact that they supplied the claimant that they could freely deliver to third parties. 
20. As far as the direct infringement is concerned, the Court orders recall and destruction. However, with respect to the product, the subject-matter of the indirect infringement (the vacuum buffer), the Court holds that such measures are not possible. 

Comment

1. The whole infringement case against defendant 1 is based on a test purchase in 2021 but, at the oral hearing, defendant 1 apparently conceded that also delivery had taken place including after 1 June 2023, such that the Court retained continuing infringement and applied UPCA law.
2. The Court then decided that Art. 72 UPCA (statute of limitation) is applicable, which in this case means that damages have to be paid for infringement in the countries where the patent is in force as of 2015. The Court comes to this conclusion by finding that the claimant had knowledge of the infringement only as of the test purchase in 2021. The defendants have apparently not tried to prove that the claimant knew or could have known this much earlier. For instance because defendant 1 used to deliver products, among which the (indirectly) infringing products, to the claimant and both were big players in a niche market!
3. Note that the Court reads Art. 72 UPCA (correctly I think) not as meaning that one cannot claim damages for the period which precedes the lawsuit for more than 5 years; additionally, even after 5 years of continued infringement, the patentee may still get an injunction. Art. 72 UPCA seems a very pro-patentee provision, far more liberal than in several national systems. 
4. The Court questions whether a defendant can raise unreasonable delay in the UPC. In my opinion, UPC actions are also governed by general concepts such as misuse and good faith and a defence based on unreasonable delay should in principle be possible.
5. In this case, defendant 1 delivered (indirectly) infringing products to the claimant for years. Should the claimant be entitled to an injunction 4 years after it stopped buying from the defendant and without having proven any (indirectly) infringing act during all this time? I cannot see any serious threat!
6. With respect to the double territoriality rule when it comes to indirect infringement, the Court notes that if the essential element of the invention (here the vacuum buffer) is sold in Germany for implementing the invention, there is indirect infringement in the UPC (assuming all the other requirements are fulfilled and the patent is in force in the country where the invention is implemented). I agree and it means that Art. 26 UPCA has a broader meaning than the national law provisions, which limit the double territoriality condition to the national territory.   
7. The Court states that it cannot order the recall and destruction of the essential element of the invention (the vacuum buffer) as it considers the vacuum buffer is not “Gegenstand des Patents” (subject-matter of the patent). It refers to its own case law and that of the Local Division Mannheim and states that that is also the case if the product cannot be used in a non-infringing manner.
8. First of all, “Gegenstand des Patents” cannot be found in Art. 64 of the UPCA, which refers to “products found to be infringing the patent” (i.e. in German: “Erzeugnisse, die (…) ein Patent verletzen”). Although such a product does not directly infringe the patent, it still clearly infringes the patent indirectly and I do not think that Art. 64 should be read in the restrictive way that only directly infringing products are intended.
9. The fact that this provision also mentions products (which can be recalled, destroyed, etc.) which clearly do not infringe the patent but are materials and implements principally used in the creation or manufacture of those infringing products is clear evidence to me that this limited interpretation is not well founded. 
10. Having said so, Art. 64 UPCA gives discretion to the Court. In the case at hand, where the whole direct infringement hinges on a test purchase as I have not seen any evidence of sales, deliveries or even offers by defendant 1, one may wonder if such order (which was granted with respect to direct infringement) is justified. However, the defendant does not seem to have argued against the proportionality of the claims for recall and destruction. In indirect infringement cases, such an order would not be appropriate if the product can be used in a (economical feasible) non-infringing way. Otherwise, I see no problem in a normal indirect infringement case if the measure is deemed proportionate (which is not the case here).
11. Finally, I am surprised at how easily the Court accepted the liability for damages as of 2015. Apparently, (even as a private person) you are always considered liable because you always know or should know the patent and the fact that you are infringing because patents are published and you know your own product. I think this view is incorrect. There should be facts which support the finding that a company or private person should have known that they are infringing. I also think that this, may I say very strict pro patentee view, cannot be derived from the Court of Appeal’s decision in Bhagat v Oerlikon (UPC_CoA_8/2025, 9 December 2025). But again,  I did not see that the defendants in this case put up any defence. This may be because German national law may support such a view (which basically makes the requirement “knowing or should have known” a dead letter) but that is certainly not the view in many UPC countries nor, in my opinion, of the UPCA. 

22 June 2026

Central Division Munich, UPM v International N&H

UPC_CFI_830/2024

Refund of court fees in a revocation action

Facts

1. Revocation action with respect to EP 3 540 068.
2. The written procedure was closed on 30 January 2026.
3. On 13 February 2026, the case was stayed until the decision of the Board of Appeal of the EPO.
4. The Board of Appeal revoked the patent with a reasoned decision issued on 27 February 2026.
5. The claimant requested disposing the case by a R. 360 RoP order as the proceedings have become devoid of purpose and asked for reimbursement of its legal costs by the patentee in the amount of € 96,000.
6. The defendant agreed.

The Court

Grants the request.

Comment

If the timing of a revocation action is such that the Opposition Division has revoked the patent and a decision of the Board of Appeal can still be expected during the oral phase of the proceedings, it makes sense to stay the proceedings as a decision about the validity can be expected within an acceptable time (also in UPC terms), in this case 16 months. Of course, the case will take longer if the Board of Appeal reverses the decision of the Opposition Division, but in my opinion this is a consequence that should be accepted in the interest of judicial efficiency. 
The UPCA, in its preamble, endeavors to have an oral hearing within a year and a decision within 6 weeks after the oral hearing. However, there may be situations in which one has to accept, because of efficiency reasons for instance, that that timeframe cannot be met. 

26 June 2026

Local Division Munich, Edwards v Meril

UPC_CFI_1160/2026

Damage proceedings / opening books

Facts

1. Meril infringed EP 3 669 828 with respect to its Myval heart catheters. 
2. On 10 June 2026 Meril filed its response against Edwards’ request for damages and for the books to be opened, together with a request for protection of confidential information.
3. On 12 June 2026 Edwards responded to the confidentiality request.
4. On 15 June 2026 the JR changed the status of the documents and access was given to the representatives of Edwards.
5. On 25 June 2026 Edwards asked for an extension of the term to respond to the request to open the books, which had expired that day. It argued that it did notice the change of status and that they had only gained access to the request to open the books on 23 June 2026.

The JR

1. After the order of the JR to change the status on 15 June 2026, Edwards should have inquired with the sub-registry if the change had been made.
2. The JR also notes that the CMS does not send an automatic notification of such a change.
3. The JR grants an extension until 1 July 2026.

Comment

1. The JR notes that the representatives of Edwards have not been vigilant but also notes that it would be better if the CMS would send an automatic notification and therefore grants an extension of a week.
2. That seems all reasonable. I understand from the facts, that the representatives of Edwards could (if they would have been vigilant) only get access to the documents on 15 June 2026 (order says 16 June 2026). It seems not totally unreasonable that the 14 days for a reply to the defence against the request to lay open books starts to run on 16 June 2026 which means that the term for a response would end on 1 July 2026. On the other hand it would have also certainly been possible to react on 25 June 2026 which would have given Edwards 9 days. 
3. Conclusion:
   1. The CMS should be changed so that it sends automatically notifications if an access regime has been changed.
   2. When revising the Rules, consideration must be given to the effect of confidentiality requests and the influence on time periods for filing pleadings. These requests should certainly not be used to slow down the proceedings. 

26 June 2026

Local Division Munich, Asus v Guangdong 

UPC_ CFI_2022/2025

Filing late

Facts

1. Oppo files its pleading containing its Rejoinder in the infringement case and its Reply and defence to the application to amend only in the workflow of the infringement case but not in the workflow of the revocation case.
2. Oppo filed a R. 9 RoP request asking for confirmation that it had also filed in a timely manner in the revocation case, or alternatively requesting an extension of the period for filing due to an “administrative oversight”.
3. Asus leaves the matter to the Court.

The JR

Considers the pleadings also filed in the revocation action.

Comment

1. The decision is even more understandable given that the pleadings stated that it was both for the infringement and the revocation case.
2. Apparently, uploading all of the exhibits, some of which were confidential, was quite a task. Is there no technology that would allow you to upload in the infringement case and automatically upload in the revocation case as well?

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