UPC Unfiltered, by Willem Hoyng – UPC decisions week 11, 2026

11 Februay 2026 (late published)
Local Division Hamburg, Fives v Reel

UPC_ CFI_274/2023 

Damages under German law

Facts

1. Fives obtained an infringement decision for Germany from the Local Division Düsseldorf with respect to a period and acts prior to the entry into force of the UPC.
2. Fives then started damage proceedings before the UPC.
3. After the Local Division Hamburg had held that this was not possible, the Court of Appeal ruled otherwise.
4. This is the decision after the Court of Appeal referred the case back to Hamburg.

The Court

1. German law is applicable to the questions of damages.
2. Fives has not proven that it suffered damages.
3. The Court dismissed the claim (for €6 million) and ordered Fives to pay the costs.

Comment

1. For readers or law students who want to know when new law can or cannot have retroactive effect, this decision makes very interesting reading because, in my opinion, it is entirely correct and very thorough, with all the relevant international case law.
2. The Court correctly places the burden of proof for the existence and the amount of damages on the claimant, but the decision shows how strictly this is applied under German law. I remember that, in my youth, we used to say in the Netherlands that Germany was a great country for a patentee to obtain an injunction, because the infringement court did not care about validity (and proportionality was a completely unknown phenomenon), but for damages you would have to prove everything to the last pfennig!
3. You wonder if that was the reason for claimant to go to the UPC, hoping to find a mere lenient approach. If so, it was the wrong strategy. After having spent considerable amounts on three lawyers, they are left empty-handed, with probably also a considerable claim for costs by the defendant. 

6 March 2026 (late published)
Local Division Milan, KeyMed v PR Medical

UPC_CFI_141/2026

Language of proceedings

Facts

1. On 13 January 2026, KeyMed started infringement proceedings against the Italian company PR Medical, in English.
2. In its preliminary objection, PR Medical stated that the alleged infringement takes place in Italy only and that it is domiciled in Italy. It argued that therefore the language of the proceedings had to be Italian, referring to Art. 33(1) UPCA and R. 14.2 RoP. 

The judge-rapporteur (“JR”)

1. Both conditions of R. 14.2 RoP (Italian defendant and infringement proceedings can only be brought in Italy) are cumulative and should be interpreted restrictively.
2. The claimant has the burden of proof.
3. A threat of infringement in a country other than Italy makes it possible to act in the Local Division of that other country.
4. The defendant has a website accessible in all Contracting Member States and offered and promoted its product on congresses in Spain and Germany.
5. Moreover, the defendant knows English and its website is in English.
6. The preliminary objection is dismissed.

Comment

1. This is a correct decision, and it is not clear why the representatives lodged this preliminary objection in the first place.
2. The fact that they may have preferred to proceed in Italian is not a good reason. All representatives are supposed to be able to master English.
3. This exception is created for a defendant who truly only operates in his home country and may not be able to follow proceedings in English. While this may be relevant for a very small company, it is of course not for a company who has a website in English and promotes its product in non-Italian speaking countries.

6 March 2026 (late published)
Local Division Lisbon, Gowling-Zentiva v Boehringer

UPC_CFI_282/2026 

Public access to the file 

Facts

1. Gowling, a law firm based in the United Kingdom, requested access to numerous documents in the Boehringer v Zentiva case, including “all exhibits, in particular exhibits evidencing the threat of infringement or actual infringement and exhibits relevant to the balance of interest”.
2. The respondents provided copies of the redacted pleadings and requested protection of confidential information (R. 262.2 RoP).
3. Zentiva argued moreover that there was no justification for the broad access required.

The Court

1. Gowling stated that its interest was “to gain a better understanding how the parties and the Court conducted the proceedings and ultimately reached the decision in view of the arguments brought forward by the parties and the evidence relied upon in the context of preliminary injunction proceedings.” That is a sufficient interest.
2. However, the request is not sufficiently substantiated as regards the exhibits, because it did not specify the evidence sought and would require the Court itself to search for and select the documents.
3. Zentiva further argued that the case is still pending on appeal. That argument is incorrect, as the Court of Appeal has already decided otherwise.
4. Zentiva argued that confidentiality prevented disclosure of the documents. Also that argument has no merit, as confidentiality can be protected under R. 262.1 RoP.
5. Access granted with respect to the specified documents identified in the request. 

Comment

1. By now, parties should know how to formulate a request for access and what objection you can raise against such request.
2. Gowling and Zentiva apparently did not read the decision of the Court of Appeal already cited in this decision by the JR.
3. A reminder for representatives: during the litigation, make sure that you request confidentiality under R. 262A RoP if you want to prevent public access after the case at first instance has been terminated. If you do not do so, a request under R. 262.2 RoP is likely to be refused if a member of the public asks for access and argues that you are not entitled to confidentiality. 

9 March 2026
Local Division Düsseldorf, Hologic v Siemens

UPC_CFI_758/2024 ; UPC_CFI_259/2025

Further exchange of written pleadings

Facts

1. The claimant requested a further exchange of pleadings based on R. 36 RoP. They wanted to be able to respond to the defendants’ reaction to the amended patent claims. The claimant argued that they identified a couple of statements which should be disregarded because the defendant was only allowed to react to the amended claims.
2. The claimant stated that they were not aware of the defendants’ submissions dated 24 September 2025, before 3 March 2026.

The JR

Refuses the request. The claimant can react during the oral argument.

Comment

1. For readers of this decision, who do not know the file, it is rather unclear what happened. It cannot be that the claimant did not receive the defence to the application to amend the patent, which had to have been lodged within two months of the application to amend the patent, in casu on 24 September 2025.
2. I assume that it must have been received by the claimant on 24 September 2025 (and if not, the claimant should have inquired at the Registry). Afterwards, the claimant has a month to reply and the defendant has the possibility to file a rejoinder within one month.
3. It looks like the claimant realized (after filing their reply) that the defendant had also raised new invalidity arguments against the original claims in their defence to the amended claims (which is not allowed), and wanted to correct that mistake. Or perhaps the defendant put forward arguments in their rejoinder that go beyond responding to the reply.
4. If a JR issues an order (also when sitting in a busy Division), they should realize that it should also be comprehensible for a reader who is not involved in the case.
5. This order, which lacks any further actual content (when does the oral argument take place? When and which submissions have been filed?), falls short of that requirement.
6. However, the general lesson is that R. 36 RoP is an exception: only under very special circumstances will further pleadings be allowed.

10 March 2026
Court of Appeal, Align v Angelalign

UPC_CoA_37/2026

Discretionary review

Facts

1. Align started preliminary injunction proceedings in the Local Division Düsseldorf.
2. After the defendant filed its objection to the application, the Court of first instance (“CFI”) set a deadline of 13 February 2026 for the reply and 27 February 2026 for the rebuttal.
3. On 20 February 2026, the CFI noticed that the applicant had apparently filed a reply for a different case on 13 February 2026. The CFI informed the parties.
4. The same day, Align filed the correct reply and asked the CFI (retroactively) for an extension for filing the reply until 20 February 2026. Align stated that the filing of the wrong reply was due to a human error.
5. The defendants argued that the request was inadmissible and should be refused.
6. The CFI granted the request, extended the deadline for rebuttal to 6 March 2026, and refused leave for appeal.
7. The defendants asked the Court of Appeal for discretionary review.

The standing judge of the Court of Appeal

1. Dismisses the request.
2. Refers to the principles for discretionary review between the same parties: is the order manifestly wrong or does it raise a fundamental question of law?
3. The CFI correctly applied R. 9.3(a) RoP, which can also be applied retroactively.
4. R. 320 RoP (re-establishment of rights) is only applicable if a (substantial) right is lost because of missing a time limit. This is not the case here, so the issue is governed by R. 9.3(a) RoP.
5. The CFI did not exceed its discretionary power under R. 9.3(a) RoP.
    

Comment

1. This does not reflect well on the representatives in this case. Not only did Align file the wrong document, but this went unnoticed for a week. It was the Court who sounded the alarm!
2. However, I have greater concerns about Angelalign’s conduct. They tried to prevent the correction of a human error for no good reason and even went so far (after the Court had refused appeal) to file a discretionary appeal, which every sensible person would have known would fail. I say ‘for no good reason’ because there was still an oral hearing scheduled in the preliminary injunction proceedings, during which Align could have responded to the defense. If so, Angelalign would have deprived itself of the opportunity to rebut these arguments (after having had two weeks to think about them) in writing.
3. Would it not have been much better if, after receiving of the wrong document, Angelalign’s representatives had simply called Align’s representatives and informed them of the error (perhaps asking them to inform Court and not to object against some extra time for the rebuttal)? It would have saved their client the money spent on raising objections in first instance and drafting the discretionary appeal and, as stated above, would not have harmed their position at all.
4. Without doubt, the first and foremost task of a representative is to serve their client, but it would be good if representatives see other representatives as colleagues and behave accordingly. This is often in the best interest of their clients as well: for instance, genuinely trying to agree on costs and avoid cost proceedings, or avoiding contesting other points when such do not make real sense. 

11 March 2026
Court of Appeal, Roche v. Menarini

UPC_CoA_934/2025

Withdrawal of application for interim measures 

Facts

1. On 5 December 2025, Roche obtained a preliminary injunction against Menarini on the basis of EP 1 962 668.
2. Menarini appealed, Roche responded. The written phase ended on 2 February 2026 and oral argument has been set for 18 June 2026.
3. The parties settled and Roche asked for a withdrawal of its application for a preliminary injunction. Menarini agreed and the parties also agreed on costs.

The Court

1. R. 265 RoP is also applicable to preliminary relief actions and in appeal proceedings.
2. Grants the request.

Comment

1. As Roche withdraws its application for a preliminary injunction, the granted preliminary injunction (which was not yet confirmed on appeal) loses its effect.
2. If only the appeal is withdrawn, the preliminary injunction granted in first instance would remain in effect and become final, provided the parties agree that the defendant will not seek revocation of the preliminary injunction (R. 213 RoP) because no action on the merits has been introduced (or because such action, as part of the settlement, is also withdrawn).
3. Thus, although it is possible to make the preliminary injunction disappear and replace it by contractual non-infringement obligations, it is also possible to keep the preliminary injunction alive as part of the settlement.
4. In certain national systems, this has the advantage that in case of a new (or continuing) infringement, the applicant can immediately execute penalty sums. These would go to the applicant, not the Court. This is not the case in the UPC, where the applicant needs to get a judgment for the total forfeited penalty sums first, and hope that the Registrar is going to take efficient enforcement measures, which (if successful) will result in the penalty sums going to the Court.
5. So in the UPC, it is better in the context of a settlement to replace the preliminary injunction with a contractual obligation to cease the infringement, secured by a penalty clause. In case of a breach of contract, the penalties would then go to the aggrieved party.
6. If you are the defendant, make sure that there is a maximum to the amount that can be forfeited in the settlement. I have been confronted with a case where the legal department of a multinational signed a penalty clause of 1000 guilders (~€ 400) per infringing product. After three years and a change in the marketing personnel, new marketeers started to sell the product once again. The other party saw this happening, waited two years, and claimed € 60 million!

13 March 2026
Court of Appeal, Adobe c.s. v Keeex 

UPC_CoA_922/2025; UPC_CoA_923/2025; UPC_CoA_924/2025; UPC_CoA_925/2025

International jurisdiction

Facts

1. Keeex started infringement proceedings before the Local Division Paris against the defendants.
2. The defendants lodged a preliminary objection challenging the international and internal jurisdiction of the Local Division Paris.
3. The judge-rapporteur dismissed the preliminary objection, in particular upholding jurisdiction with respect to non-UPC countries.
4. The defendants appealed.

The Court of Appeal

Internal jurisdiction

1. The Court cites Article 33(1)(a) of the UPCA and refers to UPC_CoA_188/2024, holding that Article 33(1)(a) of the UPCA must be interpreted in the same way as Article 7(2) of the Brussels I bis Regulation.
2. If a website is accessible in the territory of a Contracting Member State, Article 33(1)(a) of the UPCA is applicable.

International jurisdiction

1. The Court refers to Article 71b(2) of the Brussels I bis Regulation, which provides that, for non-European Union defendants, the UPC must apply the same rules as those applicable to European Union defendants.
2. The Court refers to Article 4(1) and Article 24(4) of the Brussels I bis Regulation and to BSH v Electrolux.
3. The Court also refers to Article 7(2) of the Brussels I bis Regulation and to the case law of the Court of Justice, holding that Article 7(2) confers jurisdiction only in the Member State where the damage has occurred or is likely to occur.
4. The Court cites Article 71b(3) of the Brussels I bis Regulation as an additional ground of jurisdiction, provided that the conditions of that provision are fulfilled.
5. R. 13.1(o) RoP requires that the Statement of claim contains the reasons why the division before which the action is brought has international and internal jurisdiction.
6. All defendants, which are non-UPC companies, accepted the international jurisdiction of the Local Division Paris to hear the case for the UPC territory.
7. Keeex did not rely in the Statement of claim on Article 71b(3) of the Brussels I bis Regulation and did not set out the conditions for the application of that provision in the Statement of claim. It could not do so at a later stage.

Decision

No jurisdiction for countries outside the UPC.

Comment

1. This decision comes as no surprise, as it is based on clear case law of the Court of Justice.
2. One defendant argued that jurisdiction was restricted to France, but withdrew that defence during the oral hearing. All defendants therefore accepted that the UPC is one court for the whole UPC territory, which the Court of Appeal confirmed.
3. The lesson therefore is that, if you want to invoke international jurisdiction also for countries outside the UPC against non-UPC companies, you must rely on Article 71b(3) of the Brussels I bis Regulation and make sure that you set out, and prove, all elements necessary for the application of that provision in the Statement of claim.
4. Note that this is a case on the merits. It may be different in PI proceedings because of Article 35 of the Brussels I bis Regulation, but that question is pending before the Court of Justice.
5. Note also that in this case art 8(1) of the Brussels I bis Regulation was not at issue other than art 7(2) of the Brussels I bis Regulation art 8(1) can give cross border jurisdiction. See the Court of Justice in Solvay V Honeywell. 

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