# 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%2Fes%2Fnoticias%2Fdetail%2Fupc-unfiltered-by-willem-hoyng-upc-decisions-week-40-2026%26title%3DUPC%20Unfiltered%2C%20by%20Willem%20Hoyng%20%E2%80%93%20UPC%20decisions%20week%2040%2C%202026%26summary%3D "Linkedin") # UPC Unfiltered, by Willem Hoyng – UPC decisions week 40, 2026 05 octubre 2026 UPC Unfiltered News 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). #### **28 September 2026** **Local Division Munich, Swarco v Yunex** [UPC\_CFI\_245/2025; UPC\_CFI\_618/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/3c916a79-7b4e-4cfa-aef3-875ab500881d.pdf) *Interim conference* **Facts** 1. Following an evidentiary seizure, Swarco started infringement proceedings. Yunex filed a counterclaim for revocation. 2. Yunex did not contest that the product examined during the evidentiary seizure was the same as the one delivered to the city of Mönchengladbach. 3. The oral hearing was postponed to 2 February 2027 to first get the result of the revocation case before the Central Division Paris. 4. The Central Division Paris considered the patent to be valid in the limited form following central limitation proceedings before the EPO. 5. The parties filed further written submissions after the decision of the Central Division Paris. 6. An interim conference took place on 11 September 2026. **The JR** 1. Yunex filed 122 pages regarding its disagreement with the decision of the Central Division Paris, but the JR decided that this should have been filed earlier. 2. Yunex based its non-infringement arguments on simulations rather than on what actually happened in the infringing products. The JR stated that it was now too late to include information on the accused products. 3. The JR encourages the parties to try mediation, stating that this can be completed within three months (i.e. before the oral hearing of 2 February 2027). **Comment** 1. Due to redactions of the order, it is unclear who started the revocation case in Paris. However, as I understand it, the claimant was a different party, and the LD had yet to decide on the counterclaim for revocation. You may wonder why the case was postponed for almost a year to await the decision of the Central Division Paris? I say this because that decision has apparently no influence other than making the case in Munich even more complicated, considering that the parties now also have to deal with what the CD Paris has said. In an exceptional case like this, would it not have been possible/better to send the revocation action to the same Central Division? 2. On the other hand, if the Local Division indeed also has to deal with the revocation, then a timely 122-page attack (assuming all pages are relevant) seems to be fully appropriate, as the defendants are fully entitled to invoke the invalidity again and to argue why the decision of the Central Division is wrong. 3. The burden of proof lies with the claimant, but a defendant, who relies on something other than the products accused of infringement, (here a simulation) risks putting forward an irrelevant defence. #### **28 September 2026** **Court of Appeal, NVIDIA v BF** [UPC\_CoA\_140/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/c5c00257-bc9d-47ad-b7f4-ccda2cb4b7b1.pdf) ***Reinstatement / appeal of conditional counterclaim*** **Facts** 1. In first instance, the Local Division asked NVIDIA if it wanted to make its counterclaim for revocation conditional on the outcome of the infringement case with respect to EP 3 743 812. NVIDIA agreed. 2. The Local Division decided that NVIDIA did not infringe the patent and therefore it did not decide the revocation case. 3. BF appealed. NVIDIA did not appeal. 4. The Court of Appeal subsequently decided (UPC\_CoA\_40/2026) that, in order to preserve the (conditional) claim for revocation, NVIDIA should have appealed. 5. NVIDIA requested the Court to reinstate the right to appeal (R. 320 RoP). 6. This request was made within one month of the Court of Appeal’s decision. 7. The opposing party, BF, did not object. **The Court of Appeal** The Court grants the request and sets the date for the Statement of Response in one month’s time, stating that the arguments have already been developed in first instance. **Comment** 1. This is a logical decision, considering that until the decision of the Court of Appeal of 16 July, there was uncertainty regarding what would happen to the conditional counterclaim in a situation where that condition was not fulfilled and the other party appealed. 2. Reminder: do not wait until the losing party in the infringement case appeals. Make sure you always file an appeal in time with respect to the (conditional) counterclaim. You only have to pay the appeal fee if the other party does indeed appeal the infringement case. #### **28 September 2026** **Court of Appeal, Keysight v Centripetal** [UPC\_CoA\_126/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/372b3101-1333-4a82-a8ec-002a9216c6e6.pdf) ***Reinstatement / appeal of conditional counterclaim*** **Facts** 1. Centripetal lost the infringement proceedings. Keysight had filed a conditional counterclaim for revocation. 2. A few days after the 16 July decision of the Court of Appeal, Keysight requested reinstatement while at the same time appealing and filing the Statement of Grounds for appeal. 3. Unlike the case between NVIDIA and BF above, Centripetal argued that the reinstatement should be refused. **The Court** 1. The Court grants the reinstatement. 2. The Court grants the full three months (after the request for reinstatement/grounds for appeal) for the Statement of Response but refuses to let the term start after the order of reinstatement. **Comment** 1. Why did Centripetal resist the application after the 16 July decision contrary to BF in the previous reported case? 2. Why did Centripetal think that the Court would grant an additional two months for a straightforward response to Keysight’s appeal? 3. It seems that the only result of these actions is that it is now clear who will ultimately have to pay the costs of the reinstatement proceedings. As the losing party, that will be Centripal. #### **28 September 2026** **Court of Appeal, Emboline v AorticLab** [UP\_CFI\_40/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/9cfa179d-2b05-4fe3-9777-45511b1fc1a1.pdf) ***Case management*** **Facts** 1. These appeal proceedings concern EP 2 129 425. 2. Emboline filed an application regarding new late filed evidence, and requested either the submission of new evidence or a further exchange of written pleadings. **The JR** 1. Emboline may comment on the new evidence during the hearing, and, if it wishes to do so, clarify which part(s) of the new evidence and the Statement of Response should be disregarded. 2. The Court does not allow further pleadings or submission of exhibits. 3. The written proceedings will be closed on 29 September 2026. 4. An interim conference is not necessary. **Comment** 1. Emboline’s request is apparently not very clear, given the precision the JR asks for (if the objection is maintained during oral argument). 2. These type of objections take a substantial amount of time to study and decide, especially if it is not presented concisely and with a convincing explanation, and that is not efficient for a busy Court of Appeal. 3. The lesson for representatives is therefore: If you really think that such an objection is important for your case and you want a decision from the JR of the Court of Appeal before the hearing, you should at least present it clearly so that it can be decided quickly. #### **29 September 2026** **Court of Appeal, NVIDIA v BF** [UPC\_CoA\_140/2026; UPC\_CoA\_55/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/7618b91c-eb39-40bd-a511-a022a7c5b48f.pdf) ***Value of the litigation in appeal*** **Facts** 1. BF sued NVIDIA for infringement of EP 3 743 812. NVIDIA filed a counterclaim for revocation. 2. The Local Division Munich rejected the infringement claim. 3. NVIDIA appealed. 4. Mistakes were made with respect to the payment of fees, and NVIDIA asked for a refund of the paid fees. **The JR** 1. In appeal, the parties should pay court fees on the basis of the value of the litigation as established in first instance. The parties cannot unilaterally change this value. 2. If a party does not agree with the value of the litigation on appeal, they can express this in the Statement of Grounds for Appeal. 3. Following a calculation taking into account the mistakes and the value of the litigation, the JR ordered a refund of € 2.940. **Comment** Representatives should bear in mind what is stated by the JR under 1 and 2 hereabove. #### **30 September 2026** **Court of Appeal, Hurtel v Philips / Belkin** [UPC\_CoA\_164/2026;](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/59dbdbc1-dea1-4c5c-b334-f354304a0448.pdf)[UPC\_CoA\_165/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/ad23ac0a-1626-47a1-b478-a194c429381d.pdf) ***Wrong language?*** **Facts** 1. Hurtel requested access to the pleadings and evidence relating to the appeal proceedings between Philips and Belkin. 2. Hurtel submitted the request in English. **Decision of the JR** As the language of the “Hauptverfahrens” (main proceedings) is in German, Hurtel gets the opportunity to file their request in German until 9 October 2026. **Comment** 1. The JR does not quote any articles of the UPCA, the Statute or the Rules of Procedure on which this decision is based. The term “Hauptverfahren” nor an English or French translation can be found in R. 262 RoP, so this is therefore a qualification by the JR. 2. While I admit that you can think of the proceedings for which access was asked as the “main proceedings”, I disagree with the implication of the use of that term. It suggests that the request for access is part of the overall proceedings between Philips and Belkin and that therefore German should be used for the request. 3. In my opinion, the proceedings ex R. 262 RoP (request for access to the Regulation) are separate proceedings. These are ‘proceedings’ between the applicant and the Registry (with comments by the parties Philips and Belkin), or, if you prefer, ‘proceedings’ between Hurtel on the one hand (the JR calls it “Antragstellerin” and Philips and Belkin (“Antragsgegner(in)”) on the other hand. 4. The case also gets a different number and a fee must be paid. 5. The problem then becomes what language the Polish applicant should use to obtain access to the file with respect to Court of Appeal proceedings. The JR solves this by referring to the Philips v Belkin proceedings. Would it not be the most practical solution for the applicant to be able to use one of the UPCA languages (in practice, English)? 6. My conclusion is that the JR could have made a more user-friendly decision, bearing in mind that English is the language which is accessible for all users of the UPC. 7. Finally: Is this work for the Court of Appeal? I suggest a new Rule that these requests are dealt with by the JR of the case in first instance (Philips v Belkin). Then we would also know which language could be used – in this case, it would have been German or English . I have already proposed a more practical way to deal with this issue: make access in principle automatic after conclusion of the proceedings as far as not confidential, unless one of the parties raises an objection. #### **30 September 2026** **Local Division Munich, NovaCloud v Amazon** [UPC\_CFI\_1547/2025/ UPC\_CFI\_1172/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/ee0a5ad7-d030-42ac-aeb3-018867ea46c9.pdf) ***Settlement*** **Facts** 1. This case concerns infringement proceedings. 2. A settlement was reached after the closure of the written proceedings. **The Court** 1. The Court accepts the withdrawal of the proceedings and rules that each party bears its own costs. 2. The Court sets the value of the litigation on € 5 million. **Comment** In view of the enormous potential damage resulting from an injunction, some parties such as Facebook, Amazon, carmakers etc., cannot afford to take even a small chance to lose, because decisions have no suspensive effect and, even if the dispute is in fact only a monetary dispute, the principle of proportionality remains, in practice, a(n almost) dead letter, particularly in relation to so called submarine patents. In this case, the patent application was published on 6 July 2022, based on a great-grandparent application filed more than 14 years earlier. Disclaimer: this case was handled by my law firm, but I made the above remarks before. I do not handle UPC cases and have no inside knowledge. If I write “a small chance to lose”, this is not based on an assessment of this particular case, but this is a general observation. #### **2 October 2026** **Court of Appeal, Canfield v Quantificare** [UPC\_CoA\_99/2026; UPC\_CoA\_110/26](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/d53c7171-c7cd-43a0-8dfc-661dbcadd657.pdf) ***Stay in appeal?*** **Facts** 1. Quantificare sued Canfield for infringement of EP 3 156 843. In response, Canfield filed a counterclaim for revocation. 2. The LD Düsseldorf found infringement and dismissed the counterclaim for revocation. 3. Canfield appealed both decisions. 4. On 24 August 2026, Canfield requested, together with its Grounds of Appeal, a stay of the appeal proceedings until the decision of the Central Division Paris in the revocation proceedings commenced by Manteana Holdings on the same date. Canfield stated that in these proceedings new invalidity arguments were raised which were likely to be successful. **The Court** 1. According to R. 118.2 and R. 242(a) RoP, a Local or Regional Division can stay infringement proceedings if a revocation case involving the same parties is pending before the Central Division. 2. Given the efficiency of UPC proceedings, this can only be done in special circumstances. 3. The fact that a third party has filed such revocation proceedings in the Central Division does not constitute special circumstances. 4. As the Court of Appeal in the present proceedings has to give its own decision regarding the revocation, there is no reason to await a decision from the Central Division. 5. Furthermore, if the conditions of R. 222.2 RoP are fulfilled, a party can make new claims, facts and evidence on appeal. 6. Apart from the fact that the case in the Central Division involves different parties, granting a stay would make it possible to circumvent the conditions of R. 222.2 RoP. **Comment** 1. What should you do if you lose revocation proceedings at first instance, but then find the killer document, or realize that you did not provide sufficient evidence to prove the common general knowledge or public prior use, or realize that you should have made different arguments? 2. You can make different arguments on appeal if they are based on the same grounds, facts and evidence. 3. However, to introduce new grounds (e.g. insufficient disclosure), new facts (e.g. the killer document) or new evidence (e.g. public prior use), you need to fulfil the conditions of R. 222.2 RoP. 4. It seems that the appellant realized that it would not be able to overcome this hurdle (e.g. because it could and should have raised the new request etc. in first instance). 5. The appellant probably also realized that it was not possible to start revocation proceedings on the basis of the same requests. In my opinion, that would only be possible on an invalidity ground, such as insufficient disclosure or lack of novelty etc., which were not invoked in first instance. 6. The appellant had a friend (?) start revocation proceedings, but this was a desperate and rather hopeless effort to obtain a stay, as explained by the Court of Appeal. 7. The interesting question is what would happen if the Central Division (later confirmed by the Court of Appeal) were to revoke the patent? 8. If this were to happen after the Court of Appeal had confirmed the LD’s decision and it had been executed, many national laws would determine that the later decision would not affect the earlier final decision. From the point of view of legal certainty, this is understandable, but the UPCA does not have such a provision. On the other hand, Art. 65.4 UPCA makes it clear that the patent, and thus the exclusive right on which the earlier decision was based, has never existed. It remains to be seen whether the Court of Appeal applying general principles (as set out in the considerations of the UPC and the Rules of Procedure), comes to the same result as these national laws. 9. If the Central Division were to deliver a revocation decision before the Court of Appeal had decided the appeal, I believe the Court of Appeal should stay the proceedings (and give the appeal suspensive effect), in order to await the final outcome of the revocation proceedings. However, it remains to be seen what the Court of Appeal will do in such a situation. **– 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 –**