# 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%2Fwww.hoyngrokhmonegier.com%2Fde%2Fneuigkeiten%2Fdetail%2Fupc-unfiltered-by-willem-hoyng-upc-decisions-week-44-2026%26title%3DUPC%20Unfiltered%2C%20by%20Willem%20Hoyng%20%E2%80%93%20UPC%20decisions%20week%2044%2C%202026%26summary%3D "Linkedin") # UPC Unfiltered, by Willem Hoyng – UPC decisions week 44, 2026 02. November 2026 UPC Unfiltered News Unified Patent Court (UPC) Hot Topic News Below, [Prof. Willem Hoyng](https://www.hoyngrokhmonegier.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). Dear reader, As we the start our fourth year of the Unfiltered, we are going to make a small change at the request of some of our readers. While we will still discuss all the decisions published last week, we will always start with what we consider as the most interesting (must read / listen) decisions, marked with an asterisk. The other decisions will then be published / discussed in the order in which they were published. #### **\* 26 October 2026** **Court of Appeal, Carpmaels v Microsoft / Suinno** [UPC-CoA-155/2026; UPC-CoA-156/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/f0376139-fb1c-44f9-aa45-f9dac9d69323.pdf) ***Access to register / confidentiality*** **Facts** 1. The applicant requests access to written pleadings and evidence in two appeal cases. It asks for the redacted versions. 2. Microsoft requests that a document filed by Suinno in the appeal proceedings, which contains information that was declared confidential in the cost proceedings, be excluded. **The Judge-Rapporteur (“JR”)** 1. Refers to R. 262 RoP and the principles for access established by the Court of Appeal (in principle: access after the case has ended, and a law firm can be considered a member of the public). 2. The request fulfils the criteria and shall be granted as it does not relate to confidential information. 3. If the Court in first instance declared certain information confidential in a non-appealed order, then said information remains confidential in appeal proceedings and after such proceedings. **Comment** 1. The way I understand this decision is that everything that is declared confidential in first instance (including information only accessible to certain persons) under R. 262A RoP remains confidential in appeal and after conclusion of the proceedings. 2. If a request for inspection is filed, such information will automatically qualify as confidential under R. 262.2 RoP. This confidentiality can be challenged under R. 262.3 RoP. 3. I believe this is the most practical way of dealing with these requests. It shows the importance of asking for confidentiality under R. 262A RoP, also when the information is known between the parties, as such confidentiality means that it is not accessible to the public. 4. In my opinion, this does not mean that a party can no longer invoke R. 262.2 RoP, with respect to information that has not been declared confidential, when a third party asks for access. However, it is difficult to see how such information would not have lost its confidential character when it has been disclosed during oral proceedings and/or to the other party. So in practice, as stated above, one should always ask for confidentiality pursuant to R. 262A RoP for information which you do not want to be accessible for the public. #### **\* 28 October 2026** **Local Division Munich, Edwards v Meril** [UPC\_CFI\_1160/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/5993b942-efa5-4102-b29c-6e2f2cbb1b5c.pdf) ***Damages*** **Facts** 1. Meril was held to infringe EP 3 669 828. 2. Edwards applied for the determination of damages with a request to lay open its books. 3. The (full panel of the) Court ordered the laying open of books. **The Court** 1. Meril already disclosed the number of infringing products each Meril company sold, and the total revenue obtained with these sales within the relevant territory for relief. 2. Edwards argued that because of the infringement, Meril also sold non-infringing products. 3. Meril argued that the further requests amount to a fishing expedition and, even if justified, the request was overly broad and should be limited. Meril also asked for a confidentiality order with respect to the information the Court would order to provide. 4. The parties agreed on a confidentiality club after an interim conference. 5. The parties also agreed on suspension of the request during possible appeal proceedings and to a period of 12 weeks for providing information. 6. Edwards withdrew and changed certain requests. 7. The Court granted the request only partly, stating among others: *21. Substance-wise, an order to lay open books will only be granted if it falls within the framework of the regulatory mechanism set out in the Rules of Procedure, and if it is proportionate.* *22. With regard to the framework within the Rules of Procedure, due account must be taken of Rule 191 RoP, as Rule 141(b) RoP makes it mandatory for the applicant to disclose, in the request, details of any information ordered by the court and provided by the other party pursuant to Rule 191 RoP.* *23. Rule 191 RoP permits the court, at the request of one party and upon providing a reason, to order the other party to disclose information in their possession that is necessary for advancing that party's case. Clearly, this rule is intended to facilitate the disclosure of substantive information, focusing on the question, 'What happened?' In contrast, Rule 141 concerns access to accounting information to facilitate the calculation of damages, and is therefore directed at the question, 'What are the financial details of what happened?'* *24. This is underpinned by paragraph c of Rule 141 RoP, which states that information subject to a request to lay open books may include documents relating to the turnover and profits generated by the infringing products; the extent to which the infringing process has been used; and accounts and bank documents. It may also include any related documents concerning the infringement.* *25. It must be stressed that, given the wording of this paragraph, information relating to the financial details of non-infringing products and services is not categorically excluded, given that the list is open and introduced with the words 'in particular'.* *26. However, as any order pursuant to Rule 141RoP must be proportionate, the possibility of ordering access to information is limited, particularly with regard to information relating to non-infringing activities.* *27. The need to take the principle of proportionality (and fairness/equity) into account follows from Art. 42 UPCA, the Preamble to the RoP (2-6) and Art. 10.3 and Art. 13.1 of the Enforcement Directive. The latter demands that damages awarded to the patent owner are proportionate to the actual prejudice suffered as a result of the infringement. By virtue of Art. 20 UPCA, the Unified Patent Court shall apply Union law in its entirety and respect its primacy.* *28. One aspect of proportionality is necessity. Any action ordered must be necessary in order to achieve the intended goal. Therefore, access to information must not be granted if it is not useful for calculating damages, as governed by Art. 68 UPCA or the applicable national law on damages. In other words, if it is clear that financial details relating to specific activities cannot be considered when calculating damages, a request to open books with regard to these activities must be rejected.”* 8. With respect to so-called springboard damages, the Court stated the following: *“43. It cannot be ruled out at this point that profits earned with 'other relevant devices' and related accessory devices' along with them are to be taken into account if Meril participated in a tender offering at least one infringing device. This applies, as explained above, even if the tender offer has been amended subsequently and the infringing device was replaced with a non-infringing 'other relevant device'. This is because the infringing activity is participating in the tender with an infringing device. Participation in a tender constitutes an offer in the sense of Art. 25(a) UPCA and therefore constitutes an infringing activity. Even if the infringing device is replaced with a noninfringing device later on, any profits earned thereafter are causally linked to the infringing offer that secured the tender. Therefore, these profits might be considered as unfair as these profits would not otherwise have been possible. They are also directly linked to the patented invention, since the invention was incorporated into the device used to win the tender. Profits from 'related accessory devices' might also be attributed to the participation in this tender, even if the sales were made after the infringing product was replaced by a non-infringing one.* *44. Profits made by Meril from sales of 'other relevant devices' and 'related accessory devices' outside of this scenario and/or without any close connection to infringing activities, are clearly not to be considered.* *45. Edwards is arguing that Meril used the infringing devices to enrol patients in the LANDMARK and COMPARE clinic trials, build a distribution network and establish and deepen relationships with interventional cardiologists. Thus, according to Edwards, Meril used the infringing products as a springboard to launch the “other relevant devices” thereby securing an unlawful start in their development, validation, customer adoption and market positioning. Edwards argues e.g. that the CE marks granted in respect of the “other relevant devices” have been granted on the basis that no signification changes to the infringing Myval THV are present.”* 9. According to the Court, under German and French national law (applicable with respect to infringements before the start of the UPC), the outcome would be the same. **Comment** 1. Edwards basically argued that it should get information with respect to all sales Meril ever made, essentially arguing that Meril would have never been on the market if it had not infringed. 2. After already “clarifying” its requests during the proceedings – which the Court rightly regarded as a limitation of its claim (R. 263.3 RoP) – the Court accepted, for the time being, that information had to be provided only about tenders in which the infringing product was replaced by a non-infringing product. The Court considered a tender an offer and held that, even if no infringing product was ultimately delivered, this was the direct result of an infringing offer. That seems an acceptable reasoning, although in my opinion, it can all depend on the importance of the infringements. If the infringement concerns an unimportant element of the offered product and Meril would also have been able to commercially offer the same product without infringing at the time of the tender, then it is difficult to argue that it is the infringement that caused the tender to be successful. 3. I conclude that, for the time being, the UPC chose a reasonable and proportionate damages theory in line with the tradition of civil law countries. #### **14 September 2026** ***(late published)*** **Local Division Milan, Cardo Systems v Asmax** [UPC\_CFI\_766/2024](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/16ac1394-1773-4b7a-b8b9-e9c98cae8d54.pdf) ***Service / errors*** **Facts** 1. On 10 July 2026, the Court issued a default decision with respect to EP 4 240 194. 2. On 29 July 2026, the sub registry asked for a Chinese translation for the service of the decision. 3. On 8 September 2026, Cardo Systems filed for the correction of several clerical errors. **The Court** The Court agreed. **Comment** 1. Again a LD Milan Order which is (very) late published. Why does the subregistry Milan not make sure that decisions are immediately published? 2. Is there nobody in the sub registry who checks a draft judgment for clerical errors? 3. By now, it should be clear to all claimants and all (sub)registries that if you wish to serve a document in Hongkong, you should mention that this is part of the Republic of China, otherwise the document will be returned. 4. Here we also see the sub registry having to ask claimant for Chinese translations for service. This clearly provides yet another argument to have the claimant carry out the service and not the registry. #### **21 September 2026** ***(late published)*** **Local Division Milan, Ericsson v Asus** UPC\_CFI\_329/2024; UPC\_CFI\_728/2024 [https://www.unifiedpatentcourt.org/sites/default/files/files/api\_order/d499a8c6-3c44-4a85-9118-07d27657cf26.pdf](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/d499a8c6-3c44-4a85-9118-07d27657cf26.pdf) ***SEP case*** **Facts** 1. This case concerns the infringement and revocation of two patents. 2. The parties made requests on 31 August 2026 and 2 September 2026 with respect to the oral argument. **The Presiding Judge/Judge-Rapporteur (“JR”)** The Judge gives guidance for the oral hearing of 24 and 25 September 2026. **Comment** 1. This decision is published only now. This raises the question why so late? 2. It is unclear which patents it relates to. 3. It is also unclear who the other members of the panel are. 4. Why does the JR issue this decision on 21 September (3 days before the hearing) while the parties requests date of 31 August and 2 September? 5. The JR announces that at the start of the hearing “The panel will give the parties more specific guidance”. Parties get 10-15 minutes to organize the oral submission accordingly. Assuming that this means that the Court will state what its provisional opinion is with respect to certain arguments, then 10-15 minutes is very short and deviates from the 30-45 minutes we see elsewhere. 6. We now have to see if a decision will be rendered in 6 weeks (6 November is six weeks), which is reported right away. #### **28 September 2026** ***(late published)*** **Local Division Milan, PRINOTH v Xelom** [UPC\_CFI\_703/2025; UPC\_CFI\_1757/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2578cc34-25eb-49b6-b45b-58e4c7643feb.pdf) ***Evidentiary seizure*** **Facts** 1. During an evidentiary seizure, Xelom hands the expert a report which has been prepared in advance for a (possible) seizure. The report edescribes the functional specification of the software used in the alleged infringing product stating that no documentation is available. 2. The expert asks the Court for a decision. **The Judge-Rapporteur (“JR”) (after consulting the other judge)** The JR makes clear this is not satisfactory and orders the expert to examine the software used in the machine in dispute. **Comment** An evidentiary seizure does not have as a goal to hear how the machine in dispute works from the defendant’s opinion. The goal is to find out how the machine works by using a neutral expert. Certainly, if no documentation is available, the expert will have to inspect the machine itself to find out. #### **22 October 2026 (*****late published*****)** **Order of the President of the Court of Appeal** *Registration as representative* **Facts** 1. The applicant filed an Art. 48.3 UPCA request to be listed as representative. The request only included a copy of the German ID card of the applicant. 2. The applicant was asked to supply additional documents and to explain if the application was based on the grandfather clause why it was not filed within the transitory one year period. 3. The applicant stated that he had in fact been a representative at the start of the UPC and wanted to be reinstated on the list of representatives. However, that proved not to be true. Applicant had only a standard user account in the CMS system (for instance for filing opt outs). 4. The applicant did not file further evidence and his application was refused. 5. The applicant filed a request for review. **The President of the Court of Appeal** 1. As was also considered by the registrar, the request is a request to be reentered in the list of representatives. 2. As the applicant has never been registered, the request cannot lead to the requested result. 3. The applicant should have applied within one year after the transitory year for a reestablishment of rights and the request is too late (more than 6 months past 3 June 2024). **Comment** This patent attorney tried the impossible! All he had to do is follow an approved course in order to acquire the litigation certificate ex Art. 48.2 UPCA, after which he would be able to act as a representative. #### **26 October 2026** **Central Division Munich, REEL v Fives** [UPC\_CFI\_2296/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/31d8162e-bbc5-434a-9179-e7774625d03b.pdf) ***Hearing of experts*** **Facts** 1. This case concerns a revocation action with respect to EP 1 740 740. 2. Fives argued that REEL has no interest, as a 100% owned company (REEL GmbH) has already lost invalidity proceedings in Germany with respect to the German part of the patent. 3. The parties discussed the relevance of the German decision, the use of a strawman and which law should be applied. 4. Fives requested the experts, who had submitted opinions in the written phase of the proceedings, to be heard. 5. The Court granted an extra exchange of pleadings in order to give the parties the opportunity to express their views on the request, also in light of the *Heraeus v Vibrantz* decision (Court of Appeal, 16 September 2026, Heraeus v Vibrantz, UPC-CoA-919/2025 and UPC-CoA-920/2025) in which the Court ruled on the effect of a national decision. **The Court** 1. The Court cites Art. 53 par. 2 UPCA, stating that the hearing of witnesses and experts is limited to what is necessary. 2. It is clear that Fives’ arguments about the relevance of the German decision are only raised with respect to the German part of the European Patent, not the other national parts, and only relate to the finding of novelty and inventive step, not insufficiency (not argued in Germany). 3. The parties now agree (after the *Heraeus v Vibrantz* decision of the Court of Appeal) that the effect and extent of the *res iudicata* of the German decision have to be decided according to German law. So, a hearing of the experts on this point is no longer necessary. 4. According to Fives, REEL wants to avoid the *res iudicata* consequences of the German decision by filing the case on behalf of REEL international, while the German invalidity case was filed by REEL GmbH. 5. The Court states that the experts have each given two opinions, on which the parties have commented extensively in the pleadings, and that Fives does not identify any specific question that should be raised during such hearing. So, the JR decides that a hearing does not seem necessary. 6. The question whether or not REEL has an interest to file revocation proceedings in light of the German decision, also in view of the fact that Fives has stated that it will not raise an infringement claim, is not a question of German law but of UPC law. Hence hearing of the experts on German law is not relevant. **Comment** 1. It is very clear that, also for reasons of efficiency, the UPCA and the RoP have been modelled particularly on the Dutch system. This means a limited number of pleadings and concise oral argument, with a small adaptation: two exchanges of pleadings instead of one and, in principle, an oral hearing of no more than one day instead of a total of three hours. This is very different from the UK/Scandinavian system with days of (expert) testimony. In the UPC expert declarations have to be filed in writing and experts will only be heard if really necessary. The decision of the Court of Appeal fits this model. We have seen a tendency of the Nordic Baltic Division to interpret the Rules a bit more in the direction of the Scandinavian tradition by hearing experts. The question is whether these long and expensive exercises in the UK, Scandinavia (and the US) lead to better results. I do not think so. I think that, in general, an experienced patent judge reading the different opinions can make up their own mind. So, indeed, a hearing of experts only seems to be useful in exceptional cases. 2. If a representative thinks that it would be really useful to hear an expert, they better file a substantive request listing the questions they want to be put before the expert(s) and the (decisive) relevance thereof. 3. I would advise representatives to always bring (credible) experts to the oral argument whose opinions have been given in declarations in the proceedings. It adds credibility to their declaration, may be of help during the argument, and one never knows whether the Court may ask a question. #### **26 October 2026** **Local Division Düsseldorf, CA v Deutsche Telekom** [UPC\_CFI\_672/2026; UPC\_CFI\_2175/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/92a3a3aa-9a2c-4651-9e43-a43f7dcb28a2.pdf) ***Confidentiality*** **Facts** 1. An initial confidentiality regime has been in place since 15 July 2026. 2. The defendant asks for a (further) confidentiality regime with a confidentiality club for new information submitted with its rejoinder in the infringement case. 3. The claimant agrees but wants to make sure that the confidentiality requirement does not extend to the 15 July order (for which this modality – a confidentiality club - was not requested). **The Judge-Rapporteur (“JR”)** The JR confirms. **Comment** If not asked, a second Order evidently does not change a first order. This request seems redundant and you may wonder if the claimant (if it was really nervous about this) could not simply have asked the defendant to confirm instead of asking the Court. #### **27 October 2026** **Court of Appeal, Network System Technologies v Qualcomm** [UPC-CoA-71/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/974b9e32-6c3e-4c3d-a7da-10c4cf397f46.pdf) ***Overpaid fees*** **Facts** 1. Network System Technologies (“NST”) filed an appeal and Qualcomm a cross-appeal. 2. Qualcomm requested reimbursement of court fees paid for the cross appeal. **The JR** 1. The fee for an appeal with respect to a counterclaim for revocation is the fee paid in first instance with an additional 10%. 2. Qualcomm overpaid € 61,150 which should be returned. **Comment** To overpay € 61,150 is no peanuts. I do not know if the registry tipped Qualcomm. If so, some flowers to brighten up the registry location in Luxembourg would certainly be deserved! #### **27 October 2026** **Local Division The Hague, Versuni v Dreame** [UPC\_CFI\_2594/2026; UPC\_CFI\_2595/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/cfa2cfbc-ff9d-4fdd-b245-a003396e64ef.pdf) ***Provisional measures*** **Facts** 1. This order concerns two preliminary injunction (“**PI**”) proceedings regarding EP 3 169 210 and EP 4 274 458. 2. The two cases were held together. They relate to a cleaning device for surfaces (a mop). **The Court** 1. The Court cites the principle (“more likely than not”) for obtaining a PI. 2. The Court decides that the claimant acted diligently and that urgency is given. 3. With respect to EP 210, the Court cites the problem the patent states to resolve and the core of the solution. 4. The Court cites the principles of claim interpretation and defines the skilled person. 5. The Court does not accept Dreame’s argument that “surface cleaning device” can also include “medical absorbing arrangements”. 6. The Court does, on the other hand, also not accept Dreame’s interpretation that the patent is limited to liquid removal. The same is true for all other limiting interpretations of the claim defended by Dreame. 7. The Court considers, with respect to novelty, a medical device not to be a device for “cleaning surfaces” (a result of the claim interpretation). 8. The Court states, with respect to inventive step: *“As a general rule, a claimed solution must be considered obvious when the skilled person would take the next step prompted by a pointer in the realistic starting point or as a matter of routine to arrive at the claimed invention”* . 9. The Court rules that the patent is valid and infringed. It thereby disregards a report from a Chinese Laboratory as irrelevant because it does not measure the relevant claim element (pore size). 10. In the second case (EP 485), the Court did not follow the claim construction proposed by the patentee and did not find infringement. **Comment** 1. The Court ordered that the Objection should not contain more words than the application and that an invalidity attack should be limited to three defences. Where such an attack is made, 25% more words may be used. 2. Nevertheless, especially the first case became rather complicated about how to measure the pore size with several technical reports. However, this did not prevent the Court from reaching what I consider to be a well-reasoned decision. 3. Once again, this case shows that it is not easy to invalidate a patent in the UPC on the basis of lack of inventive step. The Court requires a convincing argument about the incentive to combine! 4. Furthermore, in both cases, the arguments about claim interpretation (the defendant’s in the first and the claimant’s in the second case) were rather unconvincing. Sometimes, it is not bad to test your case in a mock trial with a neutral knowledgeable mock judge, because I am quite sure that the parties’ arguments were not going to win the war! #### **27 October 2026** **Central Division Munich, Beck v Baussmann** [UPC\_CFI\_3019/2026; UPC\_CFI\_3020/2026; UPC\_CFI\_714/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/016b4222-23ca-4187-97bb-0af1799abb09.pdf) ***Cost proceedings*** **Facts** 1. In revocation proceedings, the Court had ordered the defendant to bear 70% of the costs and the claimant 30% of the costs. 2. The value of the litigation had been established at € 500,000, which meant a cost ceiling of € 56,000. 3. The parties have, during the cost proceedings, agreed that the claimant is to pay 30% of € 56,000 to the defendant and the defendant is to pay 70% of € 56,000 to the claimant. **The Judge-Rapporteur (“JR”)** The JR rules accordingly. **Comment** 1. I have commented before that this percentage game should not be necessary and is rather arbitrary. I prefer a simple system: the winner takes all and in case of a draw (like this case), each party bears its own costs. 2. Why did these two parties not agree on costs before engaging in cost proceedings (which cost their clients extra money)? #### **28 October 2026** ***(corrected 29 October 2026)*** **Local Division Brussels, Establishment Labs v GC Aesthetics** UPC\_CFI\_1357/2025; UPC\_CFI\_629/2025 [ (issued on 28 October 2026)](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/a2d6daad-78b1-49c8-8f3a-1f231dde0d46.pdf) [ (corrected on 29 October 2026)](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/bd0ebba1-14fc-4d5d-bdc0-6af01d85adc4.pdf) ***Interim conference*** **Facts** 1. Infringement case with respect to EP 3 107 487. 2. Results of the interim conference. **The JR** 1. At the interim conference, two legally qualified judges (“LQJ”) and the technically qualified judge (“TQJ”) were present. 2. The JR had sent an agenda of the issues to be discussed, and had invited the parties to comment on the issues and suggest their own. 3. Settlement had seemed impossible. 4. Value of the dispute: the parties agreed that it should be set on € 8 million for the infringement and € 12 million for the revocation. 5. All issues of the case were discussed. In the UPC proceedings, Labs maintained that certain alleged prior use had been confidential, and explained that they had given up on that defence in the UK because of the costs associated with it. 6. The JR raised the jurisdiction issue, noting that no arguments had been raised by way of preliminary objection. The parties are supposed to take a conclusive position on whether the issue can still be raised in view of R. 19.7 RoP and Art. 26(1) of the Brussels I*bis* Regulation. 7. The TQJ addressed several technical issues that required more clarification, especially as both parties’ own positions were inconsistent. The parties were given until 12 November 2026 to clarify their own position within a 5-page maximum. 8. The JR stated that the Court would give a non-binding opinion at the start of the hearing and that parties would be given 30-35 minutes to restructure their pleadings. **Comment** 1. This was a very elaborate interim conference that discussed all the aspects of the case, with participation of two of the LQJs and the TQJ. It is clear that the three judges had already fully prepared the case. This is what should happen during an interim conference and what does not happen and cannot happen if a claimant files in a very busy Division. 2. We now know that the Local Division Brussels is also giving a preliminary opinion at the start of the hearing and allows the parties to restructure the oral argument. Hence, there is no necessity to file in a busy Division either in order to get such a preliminary opinion. Finally, claimants can also file in French or German in Brussels! #### **28 October 2026** **Local Division The Hague, Caelus v Pendulum** [UPC\_CFI\_1615/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/5a09f231-8a13-45d0-8e3f-b4be111eaaed.pdf) ***PI proceedings*** **Facts** Caelus claims infringement by Pendulum of its patent EP 2 753 187 for the use of the Eubacterium hallii in preventing/treating insulin resistance. **The Court (single judge)** 1. The Court accepts jurisdiction, also for Switzerland where the same infringing product is sold by Pendulum Inc. as the Dutch company serves as the anchor defendant. 2. The Court discusses the patent and establishes the skilled person. 3. The Court concludes that Caelus has acted without undue delay and dismisses the defendant’s argument that Caelus should have found the infringement earlier. There is no general obligation to monitor the market. The fact that the product was already available in Europe since 2023 via a third party does not mean that the patentee knew or ought to have known of that availability. 4. After citing the relevant Court of Appeal case law (26 February 2024, *NanoString v 10x Genomics*, UPC\_CoA\_335/2023; 13 May 2024, *VusionGroup v Hanshow*, UPC\_CoA\_1/2024; 30 April 2025, *Insulet v. EOFlow*, UPC\_CoA\_768/2024), the Court construes the claim. The Court rejects the defendant’s argument that the claim should be restricted to the strain used in Example 3. 5. The argument that the patented hallii should achieve the desired effect alone is rejected as well, since the claim does not require this, and the description allows hallii to be used with other bacteria. What is required is that the effect of hallii should be meaningful. 6. The fact that the Technical Board of Appeal has upheld the patent makes for a strong presumption of validity. 7. The Court discusses the validity arguments of the defendants, rejects them and finds infringement. **Comment** 1. The Court ruled on the case with one judge as the parties agreed to have the case dealt with by one judge (as is possible under the RoP and customary for PI proceedings in The Netherlands). 2. The decision is not surprising. The Court is lenient with respect to urgency although there was evidence of some sales in Europe since 2023. The grant of a cross-border decision has been customary in The Netherlands in PI proceedings since 1987. 3. The decision is interesting to read if you want to get a good general explanation about what bacteria are etc. by the judge (who, before obtaining his law degree, did a serious study and obtained a degree in Biochemistry). #### **28 October 2026** **Local Division The Hague, Qord IP Protection v SmartThings/Samsung** [UPC\_CFI\_2094/2026; UPC\_CFI\_3833/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/97056b4b-8177-4a6e-9aef-c278d79345f0.pdf) ***Confidentiality*** **Facts** 1. This case concerns infringement regarding EP 2 047 617. 2. On 26 October 2026, the defendant filed a redacted, highly confidential, version of its Statement of Defence, a non-redacted (non-confidential) counterclaim for revocation and a R. 262A RoP and R. 262.2 RoP application. **The Judge-Rapporteur (“JR”)** 1. The JR gives the defendants the possibility to respond with respect to the R. 262A RoP and R. 262.2 RoP requests. In the meantime, the JR makes the unredacted versions available to the representatives of defendants under provisional confidentiality pending a final R. 262.A Order. 2. The JR urges the parties to agree on the members of the confidentiality club. **Comment** 1. It seems that the JR is going to produce only an order in relation to R. 262A RoP and no order in relation to R. 262.2 RoP. The latter is foreseen after a member of the public asks for access. 2. Following the decision by the Court of Appeal in Carpmaels v Microsoft (reported this week), I have already expressed that a R. 262A RoP decision means that the pubic does not get access to the confidential information covered by such an order. #### **29 October 2026** **Court of Appeal, Hybridgenerator v X** [UPC-CoA-169/2026; UPC-CoA-170/2026; UPC-CoA-171/2026; UPC-CoA-172/2026;](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/4915f3af-6c07-436f-830f-1e0636f75b92.pdf) ***Suspensive effect*** **Facts** 1. The Local Division Copenhagen decided the following in cost proceedings: 1. In the infringement/revocation case: the applicant had to pay: € 112,000 + € 6,600 (court fees for revocation); 2. In the (discontinued) PI case: the applicant had to pay € 15,000 to the defendant; 3. In the preservation of evidence case: each party bears its own costs. 2. 80% had to be paid to defendant 1; 10% had to be paid to both defendants 2 and 3. 3. On 30 September, one day before the expiry of the payment deadline, the applicant lodged an application for leave to appeal together with an application for suspensive effect. 4. The respondents responded. **The Standing judge** Citing all the applicable case law, the judge rules that the request is admissible but should be dismissed as the applicant does not present any exceptional circumstances. **Comment** 1. This was a no brainer and an obvious effort to postpone the payment obligation. The applicant gets a lot of value for its money as the judge explains in detail why all the reasons listed by the applicant fail. 2. The parties agreed to have the appeal dealt with in English. It would be good if that becomes the custom for all cases. It would be easier for the Court of Appeal to deal with the workload and all decisions would be accessible for all respondents without translation! #### **30 October 2026** **Local Division Düsseldorf, Micron v Ultron** [UPC\_CFI\_2660/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/d8c3d09b-c701-4b10-9ad3-2788c5772e31.pdf) ***Service*** **Facts** 1. The parties agreed that the Statement of Claim with respect to defendant 2 would be served on their representative and that in pending proceedings in Mannheim defendant 2 would get an extension for filing its defence in order to synchronize the date with the filing of defence by the other defendant. 2. The Local Division Mannheim agreed on 29 October 2026. **The Judge-Rapporteur (“JR”)** The JR agrees with the request and orders the registry to serve the documents on the representative. **Comment** Is it necessary to serve the Statement of Claim if the defendant agrees to appear in Court on a certain date to file its defence and, if applicable, its counterclaim for revocation? **– All comments above are** [**Prof. Hoyng**](https://www.hoyngrokhmonegier.com/our-team/legal-experts/prof-willem-hoyng "https://www.hoyngrokhmonegier.com/our-team/legal-experts/prof-willem-hoyng")**‘s personal opinions –**