UPC Unfiltered, by Willem Hoyng – UPC decisions week 06, 2026

29 January 2026 (late published)

Court of Appeal, Alpinestars v Dainese

UPC_CoA_931/2025

Request for discretionary review

Facts

1. On 8 August 2024, Dainese initiated proceedings before the Local Division (LD) Milan for infringement of two patents.
2. On 18 November 2025 (after consulting the parties), the LD decides with respect to one of the two patents that defendants have to file separate proceedings before the Central Division.
3. On 4 December 2025, Alpinestars filed before the LD an application for leave to appeal, as well as an application for revision of that decision.
4. The LD gave Dainese until 12 December 2025 to react to the request for revision.
5. On 19 December 2025, Alpinestars filed a request for discretionary review with the Court of Appeal, asking to grant leave to appeal, as the Court of First Instance (“CFI”) had still not decided.
6. On 6 January 2026, the Standing Judge of the Court of Appeal asked Dainese to react by 14 January 2026.
7. On 13 January 2026, the LD, in the review proceedings, amended the order and granted leave to appeal.
8. Alpinestars informed the Court of Appeal that the appeal was no longer necessary in light of the changes made to the order by the LD Milan.

The Court of Appeal (deciding Judge Mr. Grabinski)

1. R. 265.1 RoP applies to a request for withdrawal of a request for discretionary review.
2. The request is granted. A decision on costs it not required at this stage,  as costs will be addressed in the final decision.

Comment

1. What a mess!
2. First of all, what is happening in Milan? This case was started 8 August 2024. So –except for exceptional circumstances, which I have not been able to identify– the LD has already largely exceeded the 14 months period for a decision, one of the fundamental principles of the UPC!
3. If the Court wants to separate cases relating to the two patents (why?), then it can do so immediately. Instead, it waited 14 months.
4. The LD should have decided on the request for leave to appeal within 15 days (i.e. before 19 December 2025). Instead, it decided only on 13 January 2026, forcing Alpinestars to take unnecessary steps and incur unnecessary costs!
5. The only one that appears to have acted with a clear head was the Court of Appeal, by moving a bit slowly (possibly assisted by a telephone call to Milan?). This allowed the LD to decide in the meantime, avoiding unnecessary work for the Court of Appeal and further unnecessary costs for the parties.
6. Let us hope that this is a wakeup call for the Milan Division and that in the future this is not happening anymore.
7. A disclaimer: the only information available to me is the decision itself. There may have been valid reasons for this course of events; if so, it would be advisable for the LD to explicitly mention them in the decision.

29 January 2026 (late published)

Court of Appeal, EOFlow v Insulet

UPC_CoA_920/2025

Confidential information

Facts

1. EOFlow was injuncted in preliminary injunction (“PI”) proceedings by the Court of Appeal and the Central Division in Milan.
2. As a result of the PI order, EOFlow was required to disclose certain information.
3. Insulet started compliance proceedings before the Central Division Milan.
4. EOFlow lodged a R. 262.2 RoP request.
5. The Central Division Milan imposed a fine of € 150.000 on EOFlow for non-compliance and dismissed the R. 262.2 RoP request.
6. EOFlow appealed.

The Court

1. R. 262.2 RoP applies in case a member of the public requests access to information from the Registry, for instance to written pleadings or other documents.
2. R. 262A RoP allows the Court to impose confidentiality obligations on the participants of the litigation.
3. Uploading documents to the CMS as “HC” (Highly Confidential) so that no one has access to them, is not permissible without a simultaneous application pursuant to R. 262A RoP.
4. If a party seeks confidentiality for documents in the litigation, it must request this immediately at the time of filing. If not, the information becomes immediately available and no confidentiality applies.

Comment

1. If a party seeks confidentiality in the litigation for certain information it wishes to file in the proceedings, it must request such confidentiality at the time of filing.
2. A party may, but is not required to, also request confidentiality under R. 262.2 RoP. If such request is granted, the information will not be disclosed if a member of the public requests access. If no request under R. 262.2 RoP is made, the party will, after being informed that a request for access to information has been filed, have 14 days to ask for non-publication for reasons of confidentiality.
3. What is new is what happens in a situation in which a party does not mind that all the participants in the litigation have access to the information, but does not want them to be able to disseminate that information. In that case, as indicated above under point 1(a), the party must request confidentiality under R. 262A RoP, without further restrictions (such as limiting access to specific persons). The parties (and their representatives) will then get the information, but should not use or disclose it to third parties. 

30 January 2026 (late published)

Local Division Mannheim, FUJIFILM v Kodak

UPC_CFI_365/2023

Application for imposing a fine

Facts

1. FUJIFILM requested a (second) enforcement order and the imposition of fines, arguing that Kodak had still not fully complied with the judgment, with respect to recall, provision of information and destruction.
2. A penalty order was issued by the President and Judge-Rapporteur on 20 January 2026.
3. Kodak requested leave to appeal from the Local Division (“LD”), arguing that such an order could only be issued by the full panel and that R. 333 RoP (request for revision) was not applicable.

The Court

1. The Court decided that a penalty order (R. 354.4 RoP) can be granted by the Judge-Rapporteur (“JR”) and that R. 333 RoP is therefore applicable, meaning that Kodak is considered to have asked for revision.
2. The Court confirms the order of the JR.
3. As an obiter dictum, the Court held that a UPC decision is enforceable within the UPC only as far as it concerns the UPC. With respect to a (cross-border) decision for outside the UPC, a UPC decision can only be enforced after it has been recognized by the country for which enforcement is sought. Such recognition may be based on an international instrument (Brussels I bis Regulation for the EU, or a Treaty).  
4. However, in a situation where the manufacture of infringing products takes place in Germany and information is asked with respect to the sales of such products outside the UPC territory, in order to establish the damages caused by the infringement within the UPC, the UPC can order the disclosure of information about such sales.
5. All arguments raised by Kodak were dismissed, and the order imposing fines of 26 January 2026 was confirmed. 

Comment

1. In my opinion, one can argue both ways on whether the imposition of penalties must be decided by the full panel. The reference in R. 354.4 RoP to the possibility of an appeal (R. 220.2 RoP), as well as the reference to “the first instance panel of the Division in question” seems to suggest that the full panel should decide –  and that was also the intention of the Drafting Committee. However, the Court gives reasons for adopting a different view which are credible and certainly leading to a more efficient way of dealing with such a matter.
2. In earlier comments, I have already expressed the view that the current enforcement system is inefficient and should be reviewed. The judgment itself should state the penalties to be forfeited in case of non-compliance. If  non-compliance occurs, the Registry should be able to immediately start enforcement if a party refuses to pay the forfeited penalties, unless the non-compliant party files an application contesting the enforcement within two weeks of the Registry’s enforcement letter. Such an application should then be dealt with by the Judge-Rapporteur of the panel that  issued the decision.
3. I disagree with the Court’s view that a judgment of the UPC –for instance granting an injunction for the UK– cannot be enforced as long as such decision is not recognized by the foreign (in my example the UK) court. This would lead to the situation in which a German company infringing in the UK, and sued for that infringement in its home court, could simply continue its infringing sales in the UK following the grant of an injunction, for as long as (potentially expensive) recognition proceedings (in three instances?) in the UK have not yet resulted in recognition of the decision. This would be the end of the cross-border practice and (more implicitly) the efficient enforcement of patents.
4. Apart from these impractical consequences, I also fail to see the legal basis for such a view. It is the UPC that renders the decision – after having determined its jurisdiction – on infringement in the UK, and if it grants an injunction (and there is nothing in principle preventing it of doing so), than such injunction should be obeyed and, if not, enforced. Recognition is only necessary if one seeks to rely on the UK courts to enforce the decision. I emphasize that this reasoning applies after the UPC Court has decided it has jurisdiction. For reasons of comity, it may decide it does not have jurisdiction. As an example of the latter, I can imagine that if the UPC subsidiary of a UK company is infringing within the UPC territory, the UPC is not going to accept jurisdiction against the parent company for infringements in the UK (Article 8(1)of the Brussels Regulation).  
5. The decision of the Mannheim Division would mean that if a German citizen causes a traffic accident in the UK with serious consequences for UK victims, those victims could sue in Germany, with the German court applying UK tort law. Yet, if they want to enforce the decision of the German court, they would first need recognition of the judgment by a UK court before being able to collect damages in Germany? Maybe the underlying message of the Division is: you should sue in the UK. However, this example illustrates how impractical that approach would be where the person who caused the traffic accident has only assets (or insurance) in Germany.
6. The Court seems to confuse the international jurisdiction of the UPC, the material law applicable in international cases, and the enforcement of UPC decisions. It would be very strange to not be able to enforce a UPC decision in the territory of the UPC itself!
7. The decision also shows that court orders should be taken seriously and that attempts to avoid (full) compliance by advancing “clever” arguments can prove costly. If one has good reasons against (the application of) an order, they should raise them during the proceedings on the merits, not at the enforcement stage.

2 February 2026

Local Division Düsseldorf, Hewlett-Packard v Zhuhai

UPC_CFI_449/2025

Service of judgment in China

Facts

1. After service through the The Hague Convention proved impossible, the Court declared “good service” under R. 275.2 RoP and, after granting the defendant time to appear, issued a preliminary injunction (“PI”).
2. The claimant sent the PI order by e-mail to the Chinese defendant, asking for confirmation of receipt. No confirmation was received.
3. The claimant requested the Court to declare that the publication of the order on the website of the UPC constitutes “good service”.

The Court

The Court granted the request and held that service is effective as of the date of this order, which will also be published on the website of the UPC.

Comment

1. I have already expressed my view that the whole business of alternative service for obtaining a PI was unnecessary in light of Art. 15(3) of the The Hague Convention.
2. However, there is no provision allowing service of the judgment without the cooperation of the Chinese authorities.
3. Accordingly, the Court’s decision is correct. The only (small) remark is that, in my opinion, it would have been even better if the Court had also ordered the order to be sent also by mail to the Chinese defendant, as the claimant had already done earlier when requesting confirmation of the receipt of the decision. 

2 February 2026

Local Division Düsseldorf, 10x Genomics v Curio

UPC_CFI_657/2025; UPC_CFI_658/2025 

Costs

Facts

1. The Division had decided that with respect to the costs of the preliminary injunction (“PI”) proceedings and the costs in the cases on the merits, that the defendant was entitled to 30% of the costs and claimant 70% of the costs.
2. The defendant starts cost proceedings within the period of one month.
3. The claimant starts arguing about a lack of detail, upon which the defendant gives additional information. The claimant then starts complaining about the costs of paralegals, about the fact that travel costs of representatives and clients are not mentioned separately, etc.

The Court

The Court basically says you are entitled to costs which are necessary but did not have to decide each and everything as the cost ceiling (€ 180.000) was reached anyway.

Comment

1. Reading the decision, this seems a waste of the client’s money and the precious time of the Court. Instead of picking up the phone and coming to an agreement, it seems to be a hobby of some representatives to have interesting discussions on costs up to the last pfennig.
2. I suggest that we seriously think if we want UPC judges to spend their precious time on this (which in the end means we need more judges, what makes the UPC more costly, which results in higher court fees).
3. I think we should go to a much more simpler system based on “winner takes all”. So if you win an infringement case, also when only on claim 14, you are entitled to full costs. With respect to the revocation: if the patent is only maintained on the basis of auxiliary requests both parties bear their own costs.
4. There will be a mandatory rule that parties before the oral argument have to try to reach agreement on costs. Absent agreement, both parties send their costs to the Court 24 hours before the hearing (with a pro memoria for the oral argument) and the other party. During the oral argument, both parties get 5 to 10 minutes to say something about costs and the Court decides about costs in the decision on the merits.

3 February 2026

Court of Appeal, Bhagat v Oerlikon

UPC_CoA_8/2025 EN

UPC_CoA_8/2025 IT

Release of security

Facts

The parties informed the Court of Appeal that they have reached an agreement on costs and requested (consent to) the release of the security.

The Court

The Court released the security.

Comment

1. Bravo!! Two representatives who agree on costs. Let this be an example for all representatives to follow!
2. Although I am generally not in favor of returning court fees, one might consider rewarding parties who agree on costs with for example a 5% refund of court fees.
3. In order  to also get German representatives into a settling mood, I will make a personal effort: if two (first-named) German representatives for a claimant and a defendant reach an agreement on costs without any separate cost proceedings, I will send each of them a bottle of champagne! This offer is valid for the first decision mentioning such settlement reached after the publication of this Unfiltered and brought to my attention by mail. Remember it takes no more than a phone call and some reasonableness to settle costs!

4 February 2026

Local Division Paris, Keeex v Adobe

UPC_CFI_530/2025

No default decision

Facts

1. On 19 December 2025, Keeex was ordered to provide security for costs in the amount of € 200.000 within four weeks (i.e. by 11 January 2026).
2. Keeex appealed the order, however the appeal has no suspensive effect.
3. Adobe argued that the letter filed by Keeex on 11 January did not fulfill the requirements of a bank guarantee as ordered by the Court and requested for a default judgment.
4. On 26 January 2026, Keeex filed further documents.
5. Adobe argued that these documents were also insufficient.

The Court

1. The Court held that Adobe’s objections with respect to the further documentation were purely formalistic.
2. R. 158.5 RoP states that the Court may give a default judgment.
3. In this case, issuing a default judgement would be contrary to the principes of “equity” and “proportionality” because Keeex had proved that it had acted diligently and that the € 200.000 had already been blocked on its account for the guarantee on 11 January. It had provided the remaining required paperwork on 26 January 2026.
4. The Court therefore refused  to give a default decision.

Comment

1. This is a completely logical decision, certainly in the light of the very serious consequences of a default decision.
2. This should also have been clear to Adobe, and it is difficult to understand why it continued to rely on formal objections, wasting money and the Court’s time knowing that the guarantee was de facto in place.