# 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%2Ffr%2Factualites%2Fdetail%2Fupc-unfiltered-by-willem-hoyng-upc-decisions-week-08-2026%26title%3DUPC%20Unfiltered%2C%20by%20Willem%20Hoyng%20%E2%80%93%20UPC%20decisions%20week%2008%2C%202026%26summary%3D "Linkedin") # UPC Unfiltered, by Willem Hoyng – UPC decisions week 08, 2026 23 février 2026 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. 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 January 2026** ***(late published)*** **Local Division Milan, Agathon v Intercom and KNARR** [UPC\_CFI\_727/2024; UPC\_CFI\_493/2025; ](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-01-28%20LDMilan%20UPC_CFI_727-2024%20ORD-Anonymized.pdf.pd) ***Result Interim Conference*** **Facts** 1. Infringement proceedings started in 2024. 2. Two defendants. Only one defendant (Intercom) filed a counterclaim for revocation. **The judge-rapporteur (“JR”)** 1. Physical exhibits (infringing and prior art products) have to be submitted to the local Sub-Registry not later than 17 March, 2026. 2. Oral hearing takes place on 24 March 2026. 3. Certain documents filed by the claimant with their reply to the Statement of Defence are allowed, as they are filed in reaction to the Statement of Defence. 4. Parties are allowed to a further brief for discussing the equivalence theories of the Local Division in The Hague and other Divisions. 5. Defendant 2 (KNARR) may intervene on the issue of invalidity during the oral hearing, though it did not file a counterclaim for revocation. 6. Slides can be used during the oral hearing but have to be sent to the Court and the other party not later than 17 March 2026. 7. Parties are allowed to file a final brief of maximum 15 pages summarizing their positions. **Comment** 1. The order does not mention the representatives of the parties which is very unusual. I further note that if the case started in 2024 (the order does not mention the date of service of the Statement of Claim) and the oral hearing takes place on 17 March 2026, it suggests that the case is not conducted with the speed contemplated in the Rules of Procedure (oral argument in 12 months; decision in 12-14 months). 2. You would think that parties would have addressed the doctrine of equivalence (and which test to use) in their written submissions. 3. I find it also strange that defendants who never made physical (prior art) products available before, are allowed to do so one week before the hearing. If I would be the claimant I would have at least wanted sufficient time to inspect and study them. Why (assuming that was possible) does the claimant not get these physical products, for instance, a month before the hearing? 4. The Rules of Procedure do not foresee in a final brief with a summary of the arguments. Such final briefs undoubtedly lead to discussions about the summary not being correct or containing new arguments etc. 5. What an experienced representative would always do in their briefs (which are often too long) is to start with a summary of their arguments (in a structured way!). #### **10 February 2026** ***(late published)*** **Local Division Milan, Schnell v Progress** [UPC\_CFI\_1738/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-2-10%20LDMilan%20UPC_CFI_1738-2025%20ORD-Anonymized.pdf) ***Cost decision*** **Facts** 1. Application for costs by Schnell on 28 November 2025. 2. Answer of Progress on 11 December 2025: 1. we have appealed the decision on the merits; 2. appeal of a revocation decision has suspensive effect (Art. 74(2) UPCA); 3. this means that request is untimely; 4. application for costs has to be dismissed or alternatively stayed. **The JR** 1. Schnell’s argument that the suspensive effect only affects the decision as to the revocation of the patent cannot be accepted as this is an arbitrary limitation by the provision’s wording (“*an appeal against a decision on actions or counterclaims for revocation (…) shall always have suspensive effect*”). 2. JR disagrees with the Local Division Paris (cf. Decision of 29 April 2025, *Roche v. Tandem*, UPC\_CFI\_831/2025) on cost proceedings being independent from the appeal proceedings against the first instance decision on the merits. 3. Filing for costs was not untimely because it was done before Progress appealed. 4. JR decides to stay the cost proceedings. **Comment** 1. Two contradictory decisions of Local Divisions. 2. In my opinion, the decision of the JR is based on a too (and unnecessarily) literal reading of Art. 74(2) UPCA. 3. There is no reason for a different outcome on an application for costs in infringement proceedings and in revocation proceedings. 4. This would also lead to a situation in which the party who is successful in defending its patent in the counterclaim for revocation but unsuccessful in its claim for infringement, would have to pay costs for the infringement case while its claim for costs in the revocation case would be suspended. 5. Moreover, as the JR recognized, it leads to complicated situations due to the 1 month term for an application for costs and the 3 month term for an appeal. The cost procedure may be underway and then interrupted by an appeal. 6. It is very clear that suspensive effect is due to the nature of the revocation of a patent (a declaration of right) while in general all other decisions in the UPC are immediately enforceable. Conclusion: Gold medal for Local Division Paris but the ultimate decision is for the Court of Appeal! #### **11 February 2026** ***(late published)*** **Court of Appeal, Valeo v Robert Bosch** [UPC\_CoA\_4/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/ORDER_Admissibility_VALEO%20v%20BOSCH_2026-02-10_EN.pdf) ***Appeal preliminary objections*** **Facts** 1. Appeal of an order of the Paris Central Division. 2. Valeo started an infringement action in the Paris Central Division against Robert Bosch Doo, a Serbian company, Robert Bosch China, and 4 UPC based Bosch companies. 3. The four Robert Bosch companies established in the UPC raised a preliminary objection as to the internal jurisdiction of the Paris Central Division and the language used. 4. The Paris Central Division ruled that it lacked jurisdiction as to these four companies and ordered referral to the Local Division Düsseldorf and a change to the English language. 5. Valeo appealed. **The Court of Appeal** 1. The Court describes R. 220 RoP and R. 21.1 RoP. 2. The Court states: “*An order by the judge-rapporteur which allows a Preliminary objection but does not terminate the proceedings as regards one of the parties is neither a “decision” which allows the Preliminary objection within the meaning of the first sentence of Rule 21.1 RoP, nor an order which “rejects” the Preliminary objection within the meaning of the second sentence of Rule 21.1 RoP*.” In such a situation, R. 21.1 RoP second sentence is applicable, which means that you have to bring your appeal on the basis of R. 220.2 RoP. 3. So the appeal is admissible. 4. The suspensive effect requested by the respondents is refused. The fact that the respondents may have drafted their statement of defence in English in vain and may have to translate it to French if the appeal is successful, is not an extraordinary circumstance that justifies suspension of the order of the Paris Central Division. **Comment** 1. If you are interested in the procedural niceties of this, read the whole decision. For the daily practice, I summarize: 1. If upholding a preliminary objection ends the case against one or more parties, then you can appeal directly (without the need of leave for appeal) (R. 220.1 RoP). This may happen, for instance, if the Court of First Instance (“**CFI**”) finds that the UPC has no jurisdiction (e.g. a claimant only sues a UK company for infringement in the UK only, or a UPC company for infringement of a US patent). 2. In all other situations, you have to appeal under R. 220.2 RoP (as Valeo did) and need leave for appeal. If such is refused by the CFI, you have to file a request to the Court of Appeal for discretionary review. 2. Respondent has now been given 15 days to respond to the Grounds of Appeal. 3. I already predicted that Valeo will not be successful. However, the Paris Central Division should have at least referred the case to the Local Division Brussels, where two of the four Bosch companies are established and where the case can proceed in French (the language of the Statement of Claim before the Paris Central Division and of the patent concerned). #### **11 February 2026** ***(late published)*** **Local Division Düsseldorf, Maxeon v Aiko** [UPC\_CFI\_336/2024; UPC\_CFI\_605/2024; UPC\_CFI\_607/2024](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-02-11%20-%20R.%20265%20RoP%20Decision_signed_all.pdf) ***Settlement / return of court fees*** **Facts** 1. Case started in June 2024. Oral argument on 17 December 2025. 2. Two days before the Court would render its decision, parties asked for a postponement with a week. 3. Parties settled. 4. Claimant asked for a return of 60% of the court fees. 5. Defendants 3 and 5 to 8 requested a refund of court fees of € 15,000, paid for their revocation claim (brought by separate representatives), arguing – already in their counterclaim for revocation – that that claim was identical to the claim of the other defendants and that therefore no separate court fees should have to be paid. **The Court** 1. Accepted the R. 265 RoP withdrawal requests. 2. No necessity for a cost decision. 3. No return of court fees as the Court had not saved any time. 4. No return of the € 15,000 as defendants 3 and 5 to 8 filed their own motions and reasoning. **Comment** 1. Oral argument did not take place within a year (which it should have in the UPC), but took 18 months. This is not the fault of the Local Division Düsseldorf but due to the fact that the claimant chose, without any necessity, the very busy Düsseldorf Division while it could have filed in less busy Divisions. 2. The Court which had done all the work (including the drafting of the decision) was absolutely right not to return any fees. If parties cannot agree on being represented by the same counsel or different counsels cannot agree on filing the same briefs, then it is logical that they each have to pay the fees for a revocation action. #### **11 February 2026** ***(late published)*** **Local Division Düsseldorf, Avago v Telefónica** [UPC\_CFI\_1648/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-02-11%20Klageruecknahme_signed%20RT%20MM%20JS%20BB%20-%20signed%20%281%29-1.pdf) ***Settlement*** **Facts** 1. The claimant requests to withdraw its claim (R. 265.1 RoP). 2. The defendant agrees. 3. The parties do not need a cost decision as they agreed on costs. **The Court** Decides accordingly. **Comment** 1. Many cases (in my view: more than in national courts) end in settlement. Is that because of the bigger risk to have a negative outcome for the whole UPC territory? 2. In this case, the parties did not (yet) ask for a reimbursement of court fees. #### **11 February 2026** ***(late published)*** **Local Division Düsseldorf, Canon v Katun** [UPC\_CFI\_351/2024; UPC\_CFI\_595/2024](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-02-11%20Decision_redacted_signed_all_VT%20%281%29.pdf) ***Infringement / revocation*** **Facts** 1. An infringement claim based on a Unitary Patent. 2. The Opposition Division rejected the Opposition right after the oral hearing. 3. The defendant argues among others that the products (toner containers for use in Canon copiers) are not infringing because they do not have a developer receiving portion, that there is no indirect infringement due to exhaustion, and that the patent is invalid and should be revoked. 4. The claimant argues that the copier with the developer receiving portion is not part of the claim. However, in its response, it requested to amend its claim, and also argued indirect infringement in the alternative. The latter, in case the Court would rule that claim 1 covered the whole copier, as there would be no exhaustion since the toner cartridge is creating a new (patented) product. **The Court** 1. Construes the claim according Nanostring (CoA, Order of 26 February 2024, *Nanostring v. 10x Genomics*, UPC\_CoA\_335/2023) and concludes that the claim covers (only) the developer cartridge. 2. With respect to the revocation action, the Court applies the principles set out in the case law of the Court of Appeal on added matter, novelty and inventive step and concludes that the patent is valid. 3. The Court holds that the English translation of the Japanese priority document should be considered as correct if not challenged with a party expert. It adds however that even if the version of defendant was accepted in this case, it would not have made a difference. 4. The Taiwanese defendant who manufactures in Taiwan intends, and has knowledge of, the distribution in UPC territory and is therefore an accomplice and thus an infringer. 5. The Court rejects all further arguments such as: 1. Proportionality (the defendants argued that they wanted to settle the case but that they got no response). 2. Anti-competitive behavior (the patent would create a monopoly because you have to buy the toners from Canon; the Court states that even if that was the case, this is not an antitrust violation). 3. A grace period in order to avoid that cartridges have to be destroyed which is environmentally undesirable. **Comment** 1. This case took 17 months to be decided, again due to the fact that the claimant (or its German representative) chose to file in a busy German Division while the case could have been filed in less busy Divisions. For the latter, it would have been easy to render a decision within the 12-14 month term the UPC promises for a decision. 2. The defendants argued that they tried to settle the case. That is understandable because this seemed a lost case from the beginning. The Court told them that they should have signed a cease and desist letter immediately and unconditionally, with a penalty clause. 3. This is a classic case of trying to get a patent on the “consumable” itself. Although Canon stated that it is possible to manufacture non-infringing cartridges for their copiers, the Court stated that even if that would not be possible there would still be a patent infringement. 4. So this means that if I buy a copier from Canon, I can only keep using the copier if I buy the toner cartridges from Canon, which as we all know are far more expensive in a situation where you can only use Canon cartridges. Canon can ask high prices because otherwise your copier becomes worthless. Could the defendant have argued that the buyer of a Canon copier is supposed to be able to use said copier, and if nothing else has been agreed at the time of purchase, that the buyer is supposed to have an implied license to use unlicensed cartridges so that the defendant is allowed to supply such cartridges to users? I remember some old decisions about design rights with respect to replacement parts for cars. Such design rights could be invoked against unlicensed replacement parts but not if the prices were too high. 5. Often, the claim can only be directed to the complete apparatus including the consumable. That is what the defendant tried to argue. If so, it is possible to argue exhaustion (as the defendant did), except when the use of the consumable would constitute the making of a new claimed product (as the claimant argued). 6. The Court stated that it can also order (if the circumstances of the case make this proportionate) the defendant to publish the infringement decision on its website under Art. 80 UPCA. That seems correct but quite extreme as the recall order already makes sure that all infringing buyers (the resellers) of the infringing products are informed about the decision. #### **12 February 2026** ***(late published)*** **Local Division Düsseldorf, Align v Angelalign** [UPC\_CFI\_723/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/UPC.CFI%20723.2025%20Order%2012.02.2026_signed_all.pdf) ***Preliminary Injunction*** **Facts** 1. Align requests a preliminary injunction against an infringement by Angelalign of Unitary Patent 4 346 690 with respect to the management of clear alignment orthodontal therapy. 2. The defendants argue in their rejoinder that they are not infringing and allege that the patent is not novel or inventive and lacks sufficient disclosure. 3. The defendants argue that a preliminary injunction can only be ordered if the Court is sufficiently satisfied that the patent is valid in its granted form and alternatively that for invoking the validity of subclaims you need auxiliary requests. 4. The Court decided during the preliminary injunction procedure not to order a security and not to consider late filed non-infringement arguments. Leave for appeal with respect to this order was refused. The Court of Appeal refused discretionary review. 5. The presiding judge ordered the applicants to mention one fallback position (a combination with a subclaim) if claim 1 would be held invalid and ordered defendant to indicate its best three invalidity attacks. **The Court** 1. The Court has international and internal jurisdiction because the challenged embodiments are (also) offered in Germany and one of the defendants is a German company with commercial ties with the other defendants. 2. The Court cites the requirements for a preliminary injunction. The fact that no proper Examination took place before the European Patent Office (“**EPO**”) is no reason for a reversal of the burden of proof. The defendant will have to prove that it is more likely than not that the patent is invalid. 3. The Court discusses the patent in suit. 4. The Court interprets the claim features applying Nanostring (CoA, Order of 26 February 2024, *Nanostring v. 10x Genomics*, UPC\_CoA\_335/2023) and Amgen v Sanofi (“*Claim features musts always be interpreted in the light of the claim as a whole.*”) (CoA, Decision of 26 November 2025, *Amgen v Sanofi*, UPC\_CoA\_528/2024 and UPC\_CoA\_529/2024). 5. The Court states that the patent is infringed because the non-infringement defences were not raised timely. 6. It is not more likely than not that the patent is invalid. 7. The Court applies the Gold Standard for novelty and concludes that the patent is novel. 8. With respect to inventive step, the Court applies the principles of Meril v Edwards (CoA, Decision of 25 November 2025, *Meril v Edwards,* UPC\_CoA\_464/2024) and Amgen v Sanofi (CoA, Decision of 25 November 2025, *Amgen v Sanofi,* UPC\_CoA\_528/2024). 9. The Court discusses all further requirements for a preliminary injunction (unreasonable delay, necessity of the measures, enforcement security) and rules in favour of the claimant. **Comment** 1. The defendant must have been aware of this patent being granted and I cannot understand why the defendant has not raised any possible non-infringement defences timely. In general I remark the following: 1. Trusting that the EPO will not grant a patent is a very dangerous strategy. Examiners are not awarded more time for a refusal than for the grant of a patent. As refusing an application takes (far) longer than granting a patent, this is an incentive for granting patents. Some years ago, the EPO had a “raising the bar” program. Nowadays, I conclude that the EPO is not always interested in the quality of the patent and may grant patents which should not be granted. 2. In court proceedings, including preliminary relief proceedings, a granted patent is presumed valid. So it is up to the defendant to prove invalidity. 3. It is also very difficult before the UPC to avoid a (preliminary) injunction on the basis of “necessity” and/or “proportionality”. 4. So it is important to prepare each possible non-infringement argument thoroughly, and I cannot therefore believe that the defendant raised non-infringement defences only in their rejoinder. Everyone should know that this is too late, even in preliminary injunction proceedings. 2. I note that the outcome of this case very much hinges on the meaning of the notion “in real time” in the patent claim. One wonders how difficult it is to write software that does not render results “in real time” but after 15 minutes, but no doubt the defendants have thought about that. 3. For now, I look at a patent as basically a software patent, in which the software performs - in my opinion - quite logical steps, which steps are the basis for the patent. However, I am not an orthodontist and the patentee will undoubtedly argue that my opinion is tainted with hindsight. 4. The case is (unnecessarily) brought before the busy Düsseldorf Division. One of the measures to increase the Division’s capacity is to appoint a foreign judge as judge rapporteur. However, I note that it was the presiding judge who ordered to limit auxiliary requests/invalidity attacks. So apparently the President has some difficulty to leave the management of the case to said judge? 5. I also think that this is not the solution to the total unbalance between the number of cases in the German Divisions and the other Divisions. The solution is also not adding more panels because that is only going to accentuate the unbalance. Such unbalance threatens the acceptability of the UPC in other countries of the UPC which have established Local Divisions in order to participate in the now international Court. The UPCA is also clear about this. In order to avoid such unbalance, the UPCA contains an Art. 7.4 which limits the number of Divisions for a certain country to 4. The solution is allowing the President of the Court of First Instance to instruct the Sub-Registry of a too busy Division to advise claimants to file cases that can be filed in another Division, in such other Division. They may add that if claimants do not follow such advice, they cannot expect an oral hearing before a certain number of years have passed. 6. Of course, the best solution would be if representatives would start filing their cases in less busy Divisions. By now it is clear that only a few are prepared to do so. #### **12 February 2026** ***(late published)*** **Local Division Mannheim, Honeywell v Sovex** [UPC\_CFI\_575/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/order%20UPC_CFI%20575-2025.pdf) ***Preliminary Objection*** **Facts** 1. Infringement action against 6 Dutch defendants and a Bosnian company by a UK company. 2. The defendants raised a preliminary objection, asking for lack of competence (with respect to the defendants 2 to 7) and alternatively, with respect to the defendant 1, for a transfer to the Local Division The Hague. **The Court** 1. The JR dismissed the preliminary objection. 2. The panel confirmed the dismissal in review proceedings holding the following: 1. The Court has international jurisdiction against the Bosnian company based on Art. 31 UPCA in conjunction with Art. 71b (1) (2) and Art. 7(2) of the Brussels I*bis* Regulation (Regulation (EU) No 1215/2012 or “**BR**”). It is not relevant that the claimant did not indicate the relevant articles. The Court has to decide *ex officio*. The allegation of infringement in the Statement of Claim is sufficient to create jurisdiction. 2. The Court states that because Honeywell has alleged infringement in Germany with respect to all Dutch defendants, the Court has jurisdiction under Art. 32(1)(a) UPCA. 3. The Court accepts that its Mannheim Division is competent because the allegedly infringing products are offered on a website targeting the whole of Europe. 4. Leave for appeal is granted. **Comment** 1. The German Divisions (except Hamburg) are extremely busy. If there would be a fair division of cases, each Division would deal with around 7% of the cases. Germany opted for the maximum number of 4 Divisions, which was justified in view of the number of cases before their national courts compared to other countries. However, by limiting the number of Divisions to 4 in Art. 7(3) UPCA, it was clear that none of the participating countries wanted the international UPC to become a *de facto* German Court. All wanted a fair share of cases across Divisions as all countries contributed to the financing of the system. 2. In this case, we see that there is no German party involved. By simply referring to a website that allegedly offers products to the whole of Europe in the Statement of Claim, the Mannheim Division states that it has jurisdiction against all the defendants, whether or not that website is their website. I feel that this sends an absolutely wrong message and may cause resentment in the rest of the UPC Member States, which have underused Divisions. 3. I think that it would have been very easy to conclude that in this case Mannheim was not competent. I hope that the defendants appeal and that the Court of Appeal for the good of the future of the UPC will be a bit more strict with respect to internal competence than what we have seen in this case. If international and internal competence is based on alleged infringement in Germany, the mere allegation should not be enough. Such allegation should have at least some credibility for each defendant. #### **13 February 2026** ***(late published)*** **Local Division Milan, Pirelli v Sichuan** [UPC\_CFI\_556/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-02-13%20LDMilan%20UPC_CFI_770-2024%20and%20556-2025%20ORD.pdf) ***Result interim conference*** **The JR** 1. The tires which have been seized will be inspected during the oral hearing and cut open with the necessary equipment. The report of the expert will be uploaded in the Case Management System (“**CMS**”). 2. Parties can use slides during the oral hearing but they have to be sent to the Court and the other party prior to the hearing. **Comment** 1. The Technical Judge indicated that it is important to also look at the interior of the tires for the infringement question. That is why it was ordered to cut the tires during the oral argument, and that the parties - if I understand the (Italian) decision correctly - can ask the expert questions about the report. 2. From my perspective, this looks like an Italian way of proceeding, with a central role for the expert. I would have expected the cutting of the tires, and the possible arguments in this regard, to have taken place after the interim conference but before the oral hearing. That way, during the oral hearing, at least the facts on which the parties rely would be clear. I would have also expected that the expert report would already have been discussed in the written statements of the parties. If afterwards during the interim procedure, the JR still considers it relevant for the expert to be cross-examined, then such can take place at the oral hearing. 3. Anyway, if you want to see the cutting of tires, go to the (public) oral hearing in Milan on 14 April 10 a.m. During my life as a litigator I have seen many demonstrations in Court but never the cutting of tires. I remember a case in which the patentee argued that the cover on a container with mayonnaise was “satt und dichtend” (meaning according to the prosecution file that the cover could not be removed by hand but only with a special tool). The defendant stated that its containers did not infringe and its lawyer was accompanied by a tall and large young associate of about 2 meters who opened the allegedly infringing container with his hands with quite some effort with the mayonnaise spilling over him. The Court found infringement as it considered the associate not to be an average human being! #### **16 February 2026** **Local Division Düsseldorf, ETRI v Hisense** [UPC\_ CFI\_716/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Decision%202026-02-16.pdf) ***Settlement*** **Facts** Parties settled (via an application to withdraw per R. 265 RoP consented by the defendant) before the end of the written procedure and do not want a cost decision. **The Court** Grants the application and orders 60% return of court fees to the claimant. **Comment** The UPC proceedings - with its consequences for numerous countries - often triggers a settlement (happening in a relatively high number of cases). However, as said before, the UPC has performed its important settlement function in this case, so I cannot see why the UPC (that should finance itself) should reimburse (part of) the court fees. If you do not want to pay the fees then settle without using the UPC (but that often proves difficult!). #### **17 February 2026** **Local Division Mannheim, Malikie v Xiaomi** [UPC\_CFI\_1733/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/1733_2025%20MANNH.pdf) ***Change of language*** **Facts** 1. Malikie, an Irish company, sued Xiaomi, a Chinese company, together with numerous subsidiaries in the Local Division Mannheim for infringement of EP 2387862. 2. Malikie started its case in German. 3. Xiaomi asked for a change of language to English, the language of the patent. 4. Malikie opposes the request. **Decision of the President of the CFI** Grants the request. **Comment** 1. We have now seen many decisions with respect to language changes, especially when German representatives acting for a non-German client against a non-German company insist on using German as language of the procedure, even when the patent is granted in English and the language of the technology is English. The result of such decisions is (of course) always a change of language into English. 2. I do not understand why users of the system (here an Irish company) accept that their representatives file in a language that they do not speak. This means that they need to pay for translation costs. More importantly, they can never read the original version of what is being filed (on their behalf and by the other party), let alone that they can directly follow what is said during the interim conference and the oral hearing. 3. This case is another example of representatives filing in a very busy Division without any necessity. The only solution may be to accept that the President of the CFI has the possibility to order that the case will be dealt with by a less busy Division that is also competent to hear the case. The President has the responsibility that the CFI functions in accordance with the goals of the UPC (to improve the enforcement of patents, to ensure expeditious and high quality decisions, a court common to - all - the contracting member states) and has to direct the judicial activities and the administration of the CFI. It is not acceptable that one part of the CFI is overloaded with cases while another has sufficient capacity to deal with these cases. The judicial activities should be evenly spread across the Court. For the good of the UPC, one can hope that the Administrative Committee confirms that the President can indeed order that cases can be handled by a different, also competent, Division. I think that this may be an even better solution than what I suggested above: advising representatives to choose another Division as until now, no advice to file in a different Division seems to impress (the majority of) representatives. #### **17 February 2026** **Court of Appeal, bioMérieux v Labrador** [UPC\_CoA\_937/2025; UPC\_CoA\_938/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Order%20on%20Stay%20and%20deadline%20extension%20-%20UPC-COA-937-2025%20and%20UPC-COA-938-2025%20%281%29.pdf) ***Stay / extensions of time*** **Facts** 1. Infringement action at the Local Division Düsseldorf, with a counterclaim for revocation filed by appellants 2-7 that was referred to the Central Division Milan. 2. Appellant 1 filed a revocation action before the Central Division Milan. 3. The Central Division Milan upheld the patent in amended form on 21 October 2025 (in both cases). 4. The appellants appealed on 23 December 2025. 5. On 28 January 2026, the Local Division Düsseldorf dismissed the infringement claim. No appeal has yet been lodged. 6. On 5 February 2026, the appellants asked for a stay of proceedings because of the pending opposition. 7. The respondents do not agree. **The JR of the Court of Appeal** 1. Cites the general principle: no stay in order to ensure an oral hearing within a reasonable time. 2. Opposition proceedings are as such no reason for a stay. 3. The argument of alignment of infringement and revocation is not a reason for a stay either (aside from the fact that there is no appeal in the infringement proceedings yet). Alignment can be achieved in other ways. It is important that the strict time limits for grounds of appeal and statement of response are maintained. **Comment** 1. A logical decision. The JR emphasizes that the Court of Appeal has to make up its own mind (with respect to the validity of the patent). One may indeed wonder what the importance is of a decision of (only) the Opposition Division at the EPO, whose decision will moreover not be known for many months. 2. The defendant, who apparently had a good non-infringement argument, chose a very expensive way of defence by not only filing a counterclaim for revocation in the infringement proceedings, but by also starting revocation proceedings at the Central Division and by subsequently appealing this decision. What would have happened if the defendant would have only raised a conditional counterclaim in the infringement proceedings, stating that they only want said counterclaim to be ruled on if the Court would find infringement? In my opinion, the defendant would then not have been in the present appeal mess! #### **17 February 2026** **Court of Appeal, Rematec v Europe Forestry** [UPC\_CoA\_302/2025; UPC\_CoA\_305/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Entscheidung_Rematec%20vs%20Europe%20Forestry_UPC_CoA_302-2025_305-2025.EN_.pdf) ***No referral back to the CFI*** **Facts** 1. Dispute about a machine for grinding wood chips. 2. The Local Division Mannheim declared the patent invalid and dismissed the infringement action. 3. The Local Division Mannheim held that claim 1 was not novel and claim 15 was obvious. 4. The claimant appealed, basically stating that the CFI’s claim construction, on the basis of which it concluded that the patent was invalid, was wrong. **The Court of Appeal** 1. The Court discusses the teaching of the patent and defines the problem that the patent solves (“*increased efficiency and (…) a high throughput of grist in a short time*”). 2. The Court defines the skilled person (in a way with which the Local Division Mannheim and the parties agreed) and interprets the claim features. 3. The Court adopts a more limited claim interpretation correcting the Local Division Mannheim, which based its interpretation on “unsubstantiated” assumptions ”*depriving essential functional aspects of the feature of their meaning*”. 4. Claim 1 and 15 are novel and inventive (applying the criteria of Meril v Edwards (CoA, Decision of 25 November 2025, *Meril v Edwards,* UPC\_CoA\_464/2024) and Amgen v Sanofi (CoA, Decision of 25 November 2025, *Amgen v Sanofi,* UPC\_CoA\_528/2024). 5. Although the Local Division Mannheim dismissed the infringement action because of the invalidity defence, Art. 75(1) UPCA makes clear that the Court of Appeal should only refer cases back to the CFI in exceptional circumstances. This means that the Court of Appeal now has to decide on the infringement question. 6. The notion “free of sieves” does, according to the Court of Appeal, not mean that there cannot be a sieve but that the mill of the defendant is suitable for use without the sieving function (because the wood chips are too small for being sieved). This is the case if the discharge opening contains longitudinal bars which forms openings of a clear length of 200 mm and a clear width of at least 70 mm. 7. The requested order for publication of the order is refused as the claimant had to show a legitimate interest, which depends on the circumstances of the case, such as the scope and severity of the infringement, the public presentation of the conflict, taking away misconceptions in the market or deterring future infringements. **Comment** 1. The very busy Local Division Mannheim got it wrong based on “unsubstantiated” assumptions. Is that not a clear sign that they are too busy? Is it not also a good lesson for claimants not to go to such busy Divisions? There was no reason whatsoever in this case (against a Dutch defendant) to go to a busy German Division. 2. Different from the UK courts, the CFI does not have to deal with all allegations and defences in first instance. If one defence (here: invalidity) is enough to dismiss the claim, the CFI does not have to deal with the other defences. It is clear that that is more efficient and requires less time of the judges (which in the end makes the UPC cheaper, which is in turn reflected in the court fees as the UPC has to be a self-financed system). 3. The disadvantage is that if the Court of Appeal does not refer the case back to the CFI, only the Court of Appeal (and not also the CFI) will have dealt with certain issues (here the infringement question). However, as the Court of Appeal rightly decided, with the UPC being an efficient Court which renders decisions within a reasonable time, the UPC preferred this system over a referral back system. In the end, the disadvantage is not that great as parties will have had two rounds of discussion (in this case about the infringement): first in the CFI and thereafter in the Court of Appeal. A further advantage is that the litigation is also for the parties more cost efficient. So leave the expensive Rolls Royce for the UK courts! 4. For the representatives, I draw from this decision the following lesson: 1. In case of infringement, a claimant is in principle entitled to a recall and a request etc. for destruction. If you act on behalf of the defendant, proportionality arguments (among others) should be brought, also specifically against such orders (which in this case were partly successful). 2. However, if you want an order for publication of the order, as claimant you have to give (in your Statement of Claim) arguments why such publication is justified. In principle the general rule is: no publication. #### **17 February 2026** **Court of Appeal, Huawei v TP-Link** [UPC\_CoA\_926/2025; UPC\_CoA\_927/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Anordnung%20926_927-2025_Huawei_TP-Link_2026-02-17_DE_Signed.pdf) ***Public access*** **Facts** 1. TP-Link asked access to certain pleadings and documents filed in two proceedings between Huawei and Netgear, stating that they had an interest as they were being sued under the same patent by Huawei. 2. The Local Division Munich granted the requests with respect to the redacted versions as to preserve the confidentiality. 3. Huawei appealed and asked for suspensive effect of the appeal. 4. The Court of Appeal (order of 17 December 2025) granted the suspensive effect. **The Court of Appeal** 1. Refers to Ocado v Autostore (CoA, Order of 10 April 2024, *Ocado v Autostore*, CoA\_404/2023): if proceedings are terminated, the right to information outweighs the interests of the parties except for redacting personal data and confidential information. 2. The JR has to hear the parties when a request for access is made. If a party wants information to be considered confidential, they have to lodge a R. 262.2 RoP request by handing in the documents and evidence in a redacted way and by motivating why such information is confidential. The member of the public can object. 3. The appeals are rejected because the proceedings had terminated and/or the above described formalities for filing a R. 262.2 RoP request and giving reasons for the requested confidentiality had not been adhered to. **Comment** 1. This is an important decision for practitioners! 2. The way I understand the decision is as follows: 1. Every time a member of the public asks for access after proceedings are terminated, it does not make much sense to try to avoid the member of the public getting access. 2. The JR has to give you the possibility to react to such request. At that time you have to file a R. 262.2 RoP request if you want certain information be treated as confidential, to which the member of the public may not get access. 3. Such request has to be accompanied with the documents/evidence in which the confidential information is redacted and arguments are presented as to why such information is confidential. 3. This means that what has happened with respect to confidentiality between the parties during the proceedings (which is governed by R. 262A RoP) is irrelevant. Even if you have obtained a confidentiality order on the basis of R. 262A RoP, you still have to follow the above road of R. 262.2 RoP if you want to preserve confidentiality when a member of the public asks for access. However, if you do not ask for certain information to be treated confidentially during the proceedings on the basis of R. 262A RoP (which means that the other party is not obliged to keep that information secret), it seems difficult to me to argue afterwards when a member of the public asks for access that such information should be confidential under R. 262.2 RoP. 4. Conclusion: 1. Make sure that you use R.262A RoP during the proceedings (also considering that non-protected info may otherwise end up with members of the public). 2. If you have obtained a R. 262A RoP order during the proceedings, you will still have to go through the R.262.2 RoP request in case a member of the public asks for access. #### **17 February 2026** **Local Division Paris, Valeo v Bosch** [UPC\_CFI\_1963/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Order%20PO%2017.02.2026%20Valeo%20Bosch%20R33-1-signed.pdf) ***Preliminary Objection*** **Facts** 1. Valeo started infringement proceedings against Bosch companies established in France, Belgium, Germany, Serbia and China. 2. The Bosch companies filed a preliminary objection stating that the Local Division Paris does not have internal competence and asking for the case to be sent to a German Division, ordering a translation of the French Statement of Claim to German or English. 3. Bosch argues that: 1. only the parent company can be the anchor defendant; 2. there is only a commercial link between the parties if they are committing the same acts of infringement; 3. we are entitled to a German or English translation. **The JR** Rejects the preliminary objection and refuses leave for appeal. **Comment** 1. A serious and known company such as Robert Bosch should in my opinion not file such a clearly baseless preliminary objection. It damages its credibility in Court. 2. It is very good that Valeo did not file in a busy German Division (which they have done in the past). 3. What Bosch should have done, is accepting that the Local Division Paris is competent and that Valeo is entitled to proceed in French. If the patent is granted in English however, they could ask for (and very likely would obtain) a change to English. If the patent is granted in French, this will unfortunately not be possible (just like one cannot change to English if the patent is granted in German). 4. Bosch should appoint competent French counsel and have faith in the Local Division Paris, which has already proven to turn out high quality decisions like the other non-German Divisions. As I have said before, the statistics prove that all CFI Divisions deliver high quality! #### **18 February 2026** **Court of Appeal, Guardant v Sophia** [UPC\_CoA\_19/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Order%20supsensive%20effect%2019-2026.pdf) ***Suspensive effect*** **Facts** 1. Guardant applies for a preliminary injunction in the Local Division Paris but loses. 2. The Local Division Paris grants Sophia an interim award of costs of € 400,000. 3. Guardant appealed with respect to one of the three patents. 4. Guardant asks the Court of Appeal for suspensive effect of the interim award of costs. 5. Sophia asked the Court of Appeal to reject the application and to set a deadline for the payment of the interim award of costs. **The Court of Appeal** 1. The interim award for costs is an order referred to in Art. 62 UPCA. 2. Pursuant to Art. 74(1) UPCA, an appeal has no suspensive effect unless the Court of Appeal decides otherwise. This means that only exceptional circumstances can justify a suspensive effect. 3. Guardant has failed to demonstrate exceptional circumstances. It did not adhere to what is requested under R. 223.2 RoP. 4. In general, an interim award of costs should be 50% of the applicable ceiling, except if it is clear that the costs are less or there are particular circumstances of the case showing that this would be more than reasonable and proportionate. The Court should not award more than 50%, unless costs have been specified and discussed, or parties have agreed. 5. There is no legal basis for Sophia’s request. **Comment** 1. All this is due to the complicated rules with respect to costs. 2. The lesson for representatives: 1. Suspensive effect (see the case law of the CoA) will only be granted in exceptional circumstances. 2. If you ask for it, follow the instructions of R. 223.2 RoP (set out the reasons why suspensive effect should be granted as well as the facts, evidence and arguments relied on, which make it possible for the CoA to make a decision based on the application alone). 3. If you are the defendant in a preliminary injunction proceedings make sure you specify your costs and ask for award of such costs. Send your specification 48 hours before the oral hearing to the applicant and the Court, with *pro memorie* amounts for the last day of preparation and the oral hearing. However, as in all cases, it is best to agree on costs, which should be possible between reasonable representatives. 4. If you do not follow the road under c., make sure you ask for an interim award of costs (50% of the applicable ceiling), ask the Court for setting a deadline for payment (for instance within 14 days after serving the order for costs) and start cost proceedings in time. 3. Sophia, in my opinion, can simply ask the Registry to serve the decision for interim costs (assuming Guardant is not willing to pay) and indicate in the service document that payment (which is due immediately after service) should be effected within two weeks. If no payment is received, Sophia should be able to start execution proceedings before the UPC (in accordance with local national law) (seizure of assets etc.). #### **18 February 2026** **Court of Appeal, Samsung v Alexion** [UPC\_CoA\_744/2025; UPC\_CoA\_750/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Decision%20withdrawal%20744-2025%2C%20750-2025.pdf) ***Settlement of cost proceedings*** **Facts** 1. Alexion lost preliminary injunction proceedings in first instance and on appeal. 2. Samsung filed cost proceedings but the Local Division Hamburg awarded only part of the requested costs. 3. Samsung applied for leave for appeal. 4. Afterwards, the parties asked for a stay because of settlement negotiations. 5. A settlement was reached. 6. Samsung filed a withdrawal request for the application for leave for appeal on 30 January 2026. Alexion agreed. Parties did not require a cost decision. **The Court of Appeal** 1. R. 265.1 RoP also applies to a withdrawal of an application for leave for appeal. 2. The application is permitted. **Comment** This makes an end to the cost proceedings. However, such a late settlement, in cost proceedings, would not undo the result if the patent is revoked in a first instance case on the merits and one wants to keep the patent alive. In that case, you have to settle before a final decision of the Court of Appeal! #### **18 February 2026** **Local Division Düsseldorf, Dai Nippon v Zapp** [UPC\_CFI\_466/2025 ; UPC\_CFI\_869/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Anordnung_R262A_466_2025%20geschw%C3%A4rzt.pdf) ***Request for confidentiality*** **Facts** 1. A request by the defendant to consider certain information in their rejoinder as confidential. 2. The request is reasoned and also contains the persons (of the claimant) who may have access. 3. The claimant argues that the info is not confidential and alternatively wants access to be granted to a list of 10 persons. **The JR:** 1. Refers to Art. 9 of Directive (EU) 2016/943, Art. 58 UPCA and R. 262A RoP. 2. The protection of confidential information is not restricted to commercial information but also encompasses technical information. 3. The number of 10 persons on the list of the claimant is restricted to the first 4 that are named and two persons of the Japanese firm which cooperate with the representatives of the (Japanese) claimant. 4. With respect to translators and experts, it is not necessary to name them as they are bound to confidentiality because of their agreement (with a party). **Comment** This seems to be a sensible decision. Apparently, the JR does not find it necessary to put on the list translators and experts that are used by the claimant as these are bound to secrecy by their agreement anyway. However, this agreement is with the claimant. So the claimant has to make sure that these persons are bound to secrecy. As to experts, I wonder if it would not be better to mention their names and number in the R. 262A RoP decision. That way, the number of experts is clear and they are directly under an obligation of secrecy ordered by the Court. #### **18 February 2026** **Local Division The Hague, GSK v Moderna** [UPC\_CFI\_616/2025; UPC\_CFI\_1439/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/20260218%20Procedural%20Order%20CFI_616.2025%20%28REDACTED%29.pdf) ***Applications by the parties*** **Facts** 1. Infringement case against 15 Moderna companies. 2. Parties raise several requests. **The JR** 1. Application to amend the claim (R. 263 RoP) In its reply, GSK wants to include Moderna’s newest product in its claim. The JR allows this, mentioning that the original claims (already) asked for a (general) injunction not to infringe GSK’s patent. 2. Number of auxiliary requests (R.30.1 RoP) The JR states that the number of 40 auxiliary requests does not seem reasonable though a final decision will be made at the hearing. GSK is ordered to file a tabular overview clearly indicating which (combination of) features is introduced with each auxiliary request and with respect to which invalidity attack. 3. R.9 RoP application of Moderna The arguments introduced by GSK in its rejoinder are a response to Moderna’s defence and are allowed. **Comment** 1. As I have said before, the Drafting Committee of the Rules had a maximum of about 5 auxiliary requests in mind when drafting R. 30.1 RoP. 2. In my opinion, it is before the EPO that the patentee can file as many auxiliary request as possible but it should not be possible to repeat this in litigation. The patentee can also do its own more thorough prior art search during the prosecution of its patent if it does not trust the work of the EPO and adapt its claims accordingly. 3. A company that wants to launch a product and takes the effort to do a patent search, can find a relevant patent and come to the conclusion that this patent is invalid. It cannot be expected to also contemplate 40 (and even more) possible auxiliary requests. 4. In the area of patents, there is a lot of talk about the certainty of third parties but the reality is that it is easy to create uncertainty with patent strategies and therewith stifle further research and development because it is too risky. A known strategy is filing a very extensive first application, and subsequently create claims which read on the product of a competitor after numerous divisionals and many years. It is almost impossible to foresee all possible claims which can be generated from a document of hundreds of pages. Thereafter, there is still no certainty because invalid claims can still be repaired with an auxiliary request in opposition proceedings. And even afterwards, a third party still has no certainty because even the granted claim can be saved from invalidity with 40 (or more) auxiliary requests. 5. Such ‘submarine tactics’ should in my view not be possible. At the very least, when it comes to a granted patent, the possibility of amending the claims again should not be unlimited, and the UPC should not be turned into a kind of EPO. So, I believe the UK provides a good example. The claimant has to make up its mind and formulate its best 5 auxiliary requests. #### **18 February 2026** **Local Division Mannheim, Corning v Hisense** [UPC\_CFI\_819/2024; UPC\_CFI\_416/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Final%20order%20dated%20February%2018%2C%202026%20signiert.pdf) ***Settlement*** **Facts** 1. Corning and defendants 1 and 2 (Hisense) settled. 2. Corning files a R. 265 RoP request and defendants 1 and 2 file R. 265 RoP with respect to the counterclaim. 3. No cost decision is demanded. **The Court** 1. Patial withdrawal is possible. 2. Cases against defendants 1 and 2 are declared closed. 3. Each party bears its own costs. 4. 40% of the court fees for the counterclaim are to be paid back to the defendants. **Comment** A partial withdrawal of claims is (of course) possible. The case continues against the other 4 defendants (TCL entities). #### **19 February 2026** **Local Division Düsseldorf, Leap Tools v Wizart** [UPC\_CFI\_541/2025; UPC\_ CFI\_1313/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-02-19%20Order%20R.%20158%20RoP_signed_all.pdf) ***Request for security*** **Facts** 1. Infringement action. The defendant asks for security for costs from the claimant, a Canadian company, because: 1. the claimant has no presence in the UPC territory; 2. the claimant has a turnover of less than € 20 million; 3. value of the dispute is set on € 1 million which would mean a ceiling of costs for representation of €150,000. 2. The claimant states that a security is not necessary as Canadian courts routinely recognize foreign judgments. **The Court** Dismisses the request. **Comment** 1. A Canadian company against a Polish company! Why file such a case in the very busy Local Division Düsseldorf? 2. A logical and predictable decision. There was no practical reason for said security (which is for exceptional situations only). See the Court of Appeal decisions on the fact that the burden of proof of for instance the difficulty of enforcement falls on the party applying for security (CoA, Order of 17 September 2024, *Volkswagen v. NST*, UPC\_CoA\_218/2024 and CoA, Order of 9 July 2025, *Chint New Energy v. Jingao Solar*, UPC\_CoA\_431/2025). You wonder why such a request is made when it is clear that it will not succeed. **– 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 –**