UPC Unfiltered, by Willem Hoyng – UPC decisions week 29, 2026

20 March 2026 (late published)
President of the Court of Appeal, X v the Registrar

Art. 48.3 UPCA - Application too late

Facts

1. X, a European patent attorney had successfully followed courses before 31 December 2020 which entitled him to be accepted on the list of representatives. 
2. However, he should have filed a request before 1 January 2024 according to the E(uropean) P(atent) C(ertificate) rules.
3. The Registrar rejected the application.
4. X appealed to the President of the Court of Appeal, arguing that he had experienced difficulties with the CMS when filing his application, among others things.

The President of the Court of Appeal

1. There is no evidence that X attempted to file the application, and the refusal does not contravene the right to exercise a profession, especially since X can qualify by completing a new accreditation course.
2. The President rejects the request for review. 

Comment

1. It is good that the grandfather clause could only be used for one year, as at the time, the programs leading to the possibility of becoming a UPC representative via the grandfather clause were not regulated and checked, as is the case nowadays.
2. However, even today, it would be a mistake to think that after having obtained the litigation certificate or a bar exam you are a competent representative. Practical litigation experience is very important.

22 June 2026 (late published)

Local Division The Hague, Essity v WEPA

UPC_CFI_1103/2026

Evidentiary seizure

Facts

1. The Court granted an ex parte evidentiary seizure based on EP 3 289 139.
2. WEPA asked for a revision.

The Court

1. The Court states that WEPA’s complaint that its employees would have to answer questions during the seizure is not justified, as the order clearly spells out that the employees do not have to answer.
2. WEPA states that the order should have mentioned the TRIPS deadline for starting proceedings. The Court does not agree, as this follows automatically from R. 198.1 RoP and the lawyers who were present could have explained what paragraph 7.15 of the order meant.
3. WEPA argues that the patent is invalid and that basing an ex parte evidentiary seizure order on a decision of the OD is insufficient. In principle a granted patent is sufficient. In this case there was a positive decision of the OD. So WEPA’s complaint is not justified, according to the Court. 
4. WEPA argues that there was no urgency. In general, there is no requirement for urgency, only that there be a risk that the evidence will be destroyed. In this case it was very easy to remove digitally stored evidence. So the order was justified.
5. The Court confirms the order.

Comment

1. This (may I say) desperate attempt to ensure that the collected evidence could not be used was bound to fail.
2. However, you wonder whether it is wise to put in the order that the bailiff can ask questions but that they do not have to be answered if it is true that employees etc. do not have to answer questions. On the other hand, I think there are different types of questions. Questions about where certain evidence can be found on the premises (so reasonable cooperation with the seizure) are different from questions about a production method. With regard to the latter, employees etc. can and should be heard during the litigation if relevant. A completely non-cooperative attitude with respect to the former may lead to negative inferences in the proceedings or other measures to obtain evidence.

30 June 2026 (late published)

Court of Appeal, Xiaomi v Nera 

UPC_CoA_854/2025; UPC_CoA_692/2025

Late documents / arguments

Facts

1. On 11 April 2024 Nera sued Xiaomi for infringement of EP 2 642 632.
2. Xiaomi filed a defence and counterclaim for revocation.
3. Nera replied with 66 auxiliary requests.
4. The LD maintained the patent according to auxiliary request 2 but dismissed the infringement claim.
5. Both parties appealed. Nera did not appeal against the decision to maintain the patent according to auxiliary request 2 and restricted the number of auxiliary requests.
6. On appeal, Xiaomi filed new evidence and argued for the first time that certain auxiliary requests were not inventive.
7. In its response, Nera requested that the Court of Appeal not accept the new documents and the new reasoning with regard to the lack of inventive step.
8. At Nera’s request, the Court of Appeal decided on the requests under 7 before the oral argument.

The Court of Appeal

1. The (new) expert declaration could have been produced with the Statement of Claim or with the Reply in the revocation case in first instance because the arguments supported by the expert declaration were already known. Moreover, such expert report is of limited relevance as the skilled person does not exist and the interpretation of patent claims is a legal question.
2. With respect to the new reasoning (new invalidity ground: lack of inventive step) based on D1, D2 and D4, it is clear that, in first instance these documents were only used to dispute “novelty”. This is not a case of reaching a different conclusion on the basis of the same facts, but rather a new line of argumentation based on a different interpretation and different facts. Xiaomi could have been done this earlier because it is based on Xiaomi’s own interpretation, which was of course known at the time, but Xiaomi chose in first instance to base its arguments on the supposed conflict between validity and infringement (squeeze). This is not the case with respect to D3.
3. The Court of Appeal will not take any new materials and arguments into consideration.

Comment

1. It is a good service from the Court of Appeal to rule on these issues two weeks before the oral hearing. This avoids unnecessary preparation by the parties and loss of precious time during the oral hearing.
2. The rule seems clear. Based on the same facts (or the same interpretation of the facts), you can draw a different legal conclusion than earlier in the proceedings. You cannot later introduce different facts (or a different interpretation of the facts) unless there is a valid reason why this could not have been done earlier. I would also add that the other party should have the opportunity to react to any new legal arguments.
3. As mentioned previously, UPC proceedings require thorough preparation from the outset. In my experience, it is good to work in a team. Encourage your team members to come up with different defences and with out-of-the-box thinking. There are often different ways to achieve the same outcome. Make sure that you include them at an early stage.
4. Some jurisdictions are addicted to expert evidence. It is good that the Court of Appeal sends a message about its relative value in the UPC. Of course, a famous professor is certainly not the skilled person and what does he know about the (non-existing) skilled person?

1 July 2026 (late published)

Local Division The Hague, Curevac v Moderna

UPC_CFI_1407/2026; UPC_CFI_1408/2026

R. 190 RoP request

Facts

1. Curevac filed infringement proceedings and a R. 190 RoP request on the same day,  in which it asked for (many) technical specifications about the allegedly infringing production process.
2. The parties agreed on streamlined dates for the written submissions of all 13 Moderna defendants.
3. Moderna argued that the R. 190 RoP request is premature.

The JR

1. The JR cites the requirements for a successful R. 190 RoP request:

   “(i) The requesting party must have presented plausible evidence “reasonably available” in support of its claims; 
   (ii) The evidence to which access is requested must be “specified” and lie in control of the other party; 
   (iii) The other party’s confidential information must be protected; 
   (iv) Any order to produce evidence must satisfy the requirements of necessity, proportionality, equity, and fairness”.

2. The JR states that the requirements of necessity and proportionality are not fulfilled at this stage of the proceedings.
3. The JR sets the date for the Preliminary Objections and the Statement of defence on the dates agreed by the parties.

Comment

The general lesson, also evident from other decisions by Local Divisions, is that a R. 190 RoP request made before seeing the Statement of defence is premature. That is (in general) logical, as it is unclear what the defendant admits or what information it provides in its defence.

2 July 2026 (late published)

Court of Appeal, Shenzhen v Ericsson

UPC_CoA_100/2026; UPC_CoA_101/2026; UPC_CoA_102/2026

Leave for appeal

Facts

1. On 13 November 2025, Ericsson started infringement proceedings against Shenzhen regarding three patents.
2. The Court ordered the proceedings to be separated into three proceedings.
3. Ericsson applied for confidentiality with respect to license negotiations and comparable licenses.
4. Ericsson wanted an external-eyes-only regime. Shenzhen wanted access for in-house representatives.
5. The CFI ordered a phased confidentiality. In the first phase, this was an external-eyes-only regime.
6. Shenzhen requested leave to appeal in accordance to R. 220.2 RoP.
7. The Court granted leave, but after the 15-day period mentioned in R. 220.2 RoP, because the request was filed on the last day of the 15-day period.
8. Shenzhen requested that the Court of Appeal allow them to file an amended non-technical (FRAND) defence within one month of the Court of Appeal ordering a new confidentiality regime.

The Court of Appeal

1. The Court of First Instance cannot grant leave for appeal after the 15-day period mentioned in R. 220.2 RoP.
2. However, the request for leave to appeal, for which the CFI’s decision is too late, may be considered as a request for discretionary review.
3. The parties are invited to comment on what is stated hereabove under 2.

Comment

1. In this case Shenzhen made it impossible for the LD to rule on the request within the 15-day deadline by filing on the last day of the 15-day period. If in such a situation an LD would take more than 15 days to decide and a party would not ask discretionary review, no leave would be possible anymore.
2. The JR of the Court of Appeal suggests to a way forward. If you want to appeal against an order that requires permission to appeal, file the request with the Local Division within 14 days. Include “If the Court of First Instance is not able to grant the leave for appeal within 15 days after the service of its order, this request is also a request to the Court of Appeal for leave for appeal ex R. 220.3 RoP”. Also file the request with the Court of Appeal. The most certain way, of course, is to file a new request now ex R. 220.3 RoP if you have not heard from the Court of First Instance within 14 days of the order being served, after you have asked for leave to appeal.

8 July 2026 (late published)

Local Division Munich, Huawei v Sercomm

UPC_CFI_1271/2026

Case management

Facts

1. On 15 April 2026, Huawei commenced infringement proceedings with respect to Standard Essential Patent EP 3 611 989.
2. Although not all defendants (of the same group) had been served, an early management conference was held on 8 July.

The JR

1. The JR sets the interim conference for 16 April 2027 and the oral hearing for 5 May 2027.
2. The JR tells the parties present (defendants 2 and 3) to make sure that all parties agree on the same dates for the written submissions. These dates must not conflict with the dates for the interim conference. If this does not happen, the Court may split the proceedings.
3. The JR urges the parties to agree on a confidentiality regime, costs, and to think about the services of the PMAC.

Comment

The JR at the very busy Munich Court tries to be as efficient as possible. This will only work if the claimant and all defendants are cooperative. Wait and see!

9 July 2026 (late published)

Local Division Hamburg, Teleflex v Speed Care

UPC_CFI_685/2024; UPC_CFI_157/2025; UPC_CFI_1849/2026; UPC_CFI_1861/2026

Costs

Facts

1. The proceedings concern an infringement action and a counterclaim for revocation with respect to EP 2 077 811.
2. On 27 April 2026, the LD Hamburg dismissed the infringement action and revoked claims 1, 2, 3 and 7 of the patent.
3. Defendant requested a higher value of the litigation, which was refused. The value remained EUR 1 million for the infringement action and EUR 1 million for the counterclaim, which resulted in a EUR 200.000 cost ceiling.
4. The defendant specified costs of more than EUR 200.000 and claims EUR 11.000 in court fees.
5. The claimant agrees to EUR 200.000 and the court fees.

The Court

The Court awards the cost ceiling of EUR 200.000 and the court fees of EUR 11.000.

Comment

This decision is a must-read for representatives who want to know what and how to claim costs, as this JR provides a comprehensive overview of all the principles relating to cost recovery. This service is provided to UPC representatives and followers, even though the judge could have simply stated that the parties had agreed and awarded the requested amounts!

10 July 2026 (late published)

Local Division Milan, Cardo v Ziwu

UPC_CFI_1902/2025

Alignment of dates

Facts

1. Cardo filed an infringement action against Ziwu and Renosport.
2. The writ of summons was not served on Renosport.
3. Ziwu’s representatives offered to appear voluntarily for Renosport, for whom they had already acted in PI proceedings, on the condition that both defendants were granted an extension for filing their Statement of defence on the same date.
4. Cardo protested.

The Court

If Renosport accepts service immediately, the Statement of defence for both parties will be on 30 September. This would mean an extension of 50 days for Ziwu and a reduction of  about a month in the time for Renosport to file a defence.

Comment

The parties could not agree so the Court cut the cake more or less in the middle.

13 July 2026

Court of Appeal, Tiru v Veolia

UPC_CoA_79/2026; UPC_CoA_80/2026; UPC_CoA_81/2026

Return of court fees

Facts 

1. On 17 February 2025, Tiru started an infringement action against Valinea and Maguin in the Local Division Paris with regard to patent EP 3 178 578.
2. On 13 May 2025 Veolia started revocation proceedings in the Central Division Paris.
3. On 10/13 June 2025, Valinea and Maguin filed counterclaims for revocation in the Local Division in Paris which were referred to the Central Division.
4. On 18 March 2026, the Central Division Paris maintained the patent in amended form in both cases.
5. Tiru appealed.
6. Tiru requests withdrawal of its appeals and return of the court fees or, alternatively, 60% of the court fee.

The Court of Appeal

1. R. 265 RoP also applies in appeal. At the time of the request, the formalities check was still ongoing, so the (potential) respondents had not yet been involved in the appeal proceedings and had no interest in being heard.
2. The court fees are reimbursed for 50%.

Comment

1. See last week: the fact that nothing has happened in the appeal proceedings does not matter. The moment the appeal is lodged, the appeal fee is due.
2. Tiru requests (alternatively) 60% back. Tiru has not read (or heard) “Unfiltered” because we have reported several times that a request for reimbursement after 1 January 2026 only entitles a party  to a 50% return if requested before the end of the written proceedings. Tiru is lucky: if I had been the Court I would have dismissed the request for 60%. As there was no alternative request for 50%, Tiru would have ended up with nothing! However, the Court is fair and reasonable. If you want to be a professional representative in the UPC, spend 30 minutes every week keeping up to date with the case law!

13 July 2026

Court of Appeal, Fujifilm v Kodak

UPC_CoA_473/2025; UPC_CoA_474/2025; UPC_CoA_873/2025; UPC_CoA_881/2026

Validity / central limitation / infringement

Facts

1. Fujifilm filed an infringement action based on EP 3 476 616.
2. Kodak filed a counterclaim for revocation.
3. The Mannheim Local Division revoked the patent and dismissed the infringement action, also for the UK (finding also the UK part of the EP invalid).
4. Both Fujifilm and Kodak appealed.  
5. Fujifilm limited its patent in central limitation proceedings in line with the dependent claim it invoked in the LD.

The Court of Appeal

1. The Court discussed the patent and the problem it purports to resolve.
2. The LD did not hear Fujifilm’s defence with respect to the validity of dependent claims because Fuji had not filed auxiliary requests for these claims. Fujifilm’s complaint against the decision is justified. A claimant is only required to indicate which (combinations of) dependent claims it wants to defend and to substantiate such defence which Fujifilm had done in the LD.
3. The number of such combinations of dependent claims must be reasonable.
4. Under Art. 65(3) UPCA, the Court must, if the granted patent is considered invalid, uphold the patent in a more limited form which is valid.
5. The Court accepts the result of the central limitation proceedings, as the request for such limitation was already communicated in the Statement of grounds of appeal. The Court leaves open whether such a request can be contrary to due process.
6. The Court repeats the principles of claim interpretation (UPC_CoA_335/2023 Nanostring v. 10x Genomics) and interprets some claim features. Kodak’s arguments are rejected.
7. The Court remarks that the content of patent applications is not generally considered to represent the common general knowledge.
8. The Court states that an obvious calculation mistake in the patent (obvious for the skilled person) will be read correctly by the skilled person.
9. The Court states the principles for judging novelty. It remarks:
   “For a claim that defines features of the claimed product by way of ranges – like the present claim 1 in features 1.3.3, 1.3.4, 1.3.5, 1.3.6, 1.3.7, 1.3.8 – lack of novelty is found if the state of the art contains either by way of description or by other means of disclosure an individual product that for each and every feature that the claim defines by way of ranges has a particular value or subrange that falls into the claimed ranges (and the subrange not extending beyond the claimed range).”
10. The Court rejects the argument that everything submitted in first instance (even if it is submitted late and not allowed in first instance) should be considered by the Court of Appeal. According to the Court of Appeal, such a theory would render the front-loaded nature of the UPC proceedings meaningless.
11. The Court does not have to decide whether to allow what was filed late in first instance or what was filed as new on appeal, because the alleged prior public use was subject to an implied duty of confidentiality.
12. The Court rejected the further novelty attacks.
13. The Court refers to the principles for inventive step in Amgen v Sanofi/Regeneron (UPC_CoA_528/2024 and UPC_CoA_529/2024). 
14. The Court refuses to consider an inventive step attack based on Sawada, as Sawada, which was used earlier in the proceedings for another purpose, was only used for an inventive step attack in the R. 30 RoP Rejoinder. The Court ruled the same with respect to an inventive step attack, made for the first time on appeal, based on commercial products in the market.
15. New (legal) arguments on appeal based on facts and evidence already introduced in first instance and not disregarded due to late filing are allowed in the appeal.
16. Features which do not have a technical advantage as such should not be ignored if they have an effect in combination with other features.
17. The common general knowledge relied upon by Kodak has not been sufficiently substantiated and can only be substantiated by the content of patent applications if a series of patent documents provides a consistent teaching of what is argued as common general knowledge.
18. The motivation, pointer or reason to consult another document should be in the starting document, also considering the skilled person’s common general knowledge, and not in the document used to combine with the realistic starting point, as this would amount to hindsight.
19. Having considered the various arguments put forward to invalidate the patent, the Court concludes that none of them are successful.
20. The conclusion is that claim 1, which is the result of the central limitation procedure, is valid, from which it also follows that method claims 10 and 11 are valid.
21. All non-infringement arguments are rejected.
22. The patent is only valid in Germany and Kodak invokes private prior use in Germany. The Court stated that German law is applicable. The Court further stated that this defence failed because Kodak’s prior use could not qualify as actual commercial use of the invention, as the decision to market was taken after the priority date.
23. The Court has jurisdiction with respect to the infringements in the UK on the basis of Art. 4 Brussel I-bis Regulation.
24. The German Kodak defendants cannot be found guilty of importing and therefore infringement in the UK because ownership of title passed to Kodak Limited in Germany.
25. The Court grants the injunction with penalty sums.
26. Damages are awarded as of 7 July 2021, which is not disputed by Kodak. An interim award of EUR 300.000 is awarded. No penalty sums are appropriate and proportionate in case of non-fulfilment of a monetary obligation.
27. Orders for recall and destruction are granted (“constitutes the rule rather than the exception”). Publication of the decision on Kodak’s website is not granted (“only in special circumstances”).

Comment

1. An important decision, full of lessons for representatives, first instance judges and parties who are confronted with or contemplating using the UPC.
2. The first lesson is that you do not have to file an auxiliary request if you defend a granted (dependent) claim. Fujifilm lost in first instance because the Local Division refused to consider the validity of a dependent claim because this was not presented in the form of an auxiliary request. I have commented several times that this was a very strange decision as nothing “auxiliary” is necessary for a granted claim.
3. However, be careful. Many patents have many dependent claims which, in combination with each other, may add up to tens or even hundreds of granted claims. In first instance, Fujifilm had timely and precisely formulated on which claims it wanted to rely, and that should be kept in mind. The lesson for the claimant in revocation is to give reasons why the dependent claims are invalid (which can be because they add nothing inventive to the main claim), and the patentee has to substantiate which dependent claims it relies on, and why, in case of invalidity of the main claim. So you cannot, at a late stage (such as the rejoinder in the revocation case), all of a sudden start to argue that the combination of claims 1, 4 and 11 is inventive in case claim 1 would be found invalid.
4. The Court of Appeal even states that the number of dependent claims which you can invoke may be limited, just as auxiliary requests. While I have my reservations about this statement , as it would be strange to not be allowed to invoke an already granted valid claim, I can understand the requirement to select your best cases from the point of view of procedural economy and due process.
5. In this case, Fujifilm took the precaution of obtaining its refused claim by limitation proceedings. In one of my previous comments, I wondered what would happen if a patentee obtained a limited patent via central limitation proceedings very late in the proceedings. The Court leaves open the question whether a central limitation procedure can be contrary to due process. Although the result of such a limitation request is retroactive, it is not necessary to consider the outcome of a central limitation procedure that occurs very late in the proceedings. The Court can simply rule that the allegation that the infringing products infringe the claim resulting from the limitation procedure is made too late, and dismiss the infringement claim.  With respect to the revocation claim, the Court rules that the action is devoid of purpose.
6. Note that if you know a prior art document and have already used it in the proceedings for another purpose, you cannot all of a sudden use it as prior art in the proceedings. The same is, of course, true for an unknown document which you should have known (e.g. an own publication).
7. Again, it becomes clear that the burden of proof to invalidate a patent is pretty high. Again, the decision shows that there has to be a clear incentive to combine documents and that the incentive cannot be found in the document which you want to combine with a realistic starting point. In my opinion, that is understandable. It is all about the combination being obvious, and that can only be obvious by a pointer (incentive) lying in the realistic starting point. Only then do you arrive at the combination. If the document you want to combine with the realistic starting point also provides an incentive, then that is fine, but it is immaterial for the assessment of inventive step.
8. The incentive to combine can also lie in the common general knowledge (“a long felt want”).
9. The Court decides that proportionality could only lead to not granting an injunction in exceptional circumstances. Although the Court is right that patents can be seen as an accepted and lawful exception to free competition, the question (to be answered once by the ECJ) is whether the circumstances have to be exceptional to warrant refusing an injunction, or whether there has to be a weighing of interests and, if the interest of the third party clearly outweighs the interest of the patentee, an injunction should be granted instead of full damages awarded. This is even more so, in my opinion, with measures such as recall and (certainly) destruction. Why, in this case, can the already produced product not be sent to patent-free countries instead of being destroyed in a society which is becoming more and more aware that we have to be more prudent with our resources? Of course, the products produced in violation with the patent will be subject to the damages calculation.
10. Kodak did not contest that it is responsible for damages from the date of grant. Its representatives, being German, apparently apply, with respect to entitlement to damages, the German view, which is that a company is always at fault with respect to patent infringement because patents are published, so it could have known the patent. However, is this also the case if you have looked at the patent and considered that it is invalid and only a year later the patent is amended in central limitation proceedings? How far does your obligation to study all the relevant patents go if you want to introduce a new product (here: the result of your own research)? Do you also have to study in depth which type of patent would survive revocation proceedings?

14 July 2026

Local Division Düsseldorf, Tridonic v Inventronics

UPC_CFI_580/2025

Withdrawal / court fees

Facts

1. The infringement case had been stayed because of settlement talks.
2. The claimant, with the defendant’s approval, requests withdrawal before the end of the written procedure.
3. The original value of the litigation was EUR 1 million.

The Court

1. The Court allows the withdrawal.
2. The Court sets the value of the litigation at EUR 300.000.
3. The Court returns 50% of the court fees.

Comment

1. I am unaware of the basis on which the value of the litigation was originally set at EUR 1 million. I think that is probably what the claimant indicated. I find it strange that the Court has chosen to honour the parties’ request to set the value at EUR 300.000. I have seen nothing to justify this. Parties in a settlement should not be able to agree to tell the Court to set a lower court fee in order to get more court fees back.
2. All the explanations as to why the claimant gets 50% and not 60% seem a bit superfluous. By now, everybody should know that you get only 50% and not 60%.

14 July 2026

Court of Appeal, Xingi v Avient

UPC_CoA_76/2026

Further suspension

Facts

1. On 26 May 2026, the Court of Appeal granted suspensive effect of an order of the JR of The Hague Division until 15 July 2026.
2. The reason for this grant was the fact that, in order to comply with the order of the JR, the claimant would have to obtain an export licence from the Chinese authorities.
3. Xingi now asks for an extension of that suspensive effect, claiming that it needs more time to obtain an export licence.
4. Avient claims that Xingi is not doing its best to obtain the export licence.

The JR of the Court of Appeal

As the date of the appeal hearing is already known, the JR grants a further suspension until the decision of the Court of Appeal.

Comment

While this is a practical solution, it is not very satisfactory if it is true that Xingi is not doing everything possible to obtain the licence. At the very least, the JR could have ruled that Xingi should (continue to) use its best efforts to obtain a licence in the meantime, threatening a penalty if it does not do so.

14 July 2026

Local Division Lisbon, Shenzhen v Ericsson

UPC_CFI_850/2026

Withdrawal

Facts

1. On 6 March 2026, the claimant filed an infringement action based on EP 4 123 910.
2. Before the filing of the Statement of defence, the claimant filed an application to withdraw.
3. On 10 July 2026 defendants agreed.

The Court

1. The Court granted the request.
2. The parties agreed to bear their own costs.
3. The Court decides that 50% of the court fee is reimbursed.
4. The security is released.

Comment

A case which never became a case!
Why? We do not know!

15 July 2026 

Local Division Düsseldorf, Boa Technology v FLA Europe

UPC_CFI_996/2025; UCP_CFI_737/2026; UPC_CFI_742/2026

Formalities

Facts

1. Defendant 2 asked the Court to disregard the Reply to the Statement of defence, as it was not signed which is a requirement (see R. 4.1 RoP and the Court of Appeal UPC_CoA_61/2026), as the document itself should be signed.
2. The request to “disregard” was not repeated in the operative part of the Rejoinder and the Rejoinder contained a reaction to the Reply to the Statement of defence.

The JR

The JR provides extensive reasoning as to why he is extending the deadline for filing the Reply to the Statement of defence with retroactive effect. The document had in the meantime had been filed with a signature. Among other things, he states that defendant did not suffer any disadvantage, as evidenced by the rejoinder.

Comment

1. What is the interest for defendant 2 for raising this formality, you may wonder.
2. If defendant 2 had not flagged it, the Court would have noticed it and would have had to decide that the Reply was not filed. So defendant 2 in essence helped the claimant. However, if there would have not been a Reply there could have not been a right to file a Rejoinder and apparently defendant 2 did not want forfeit that possibility. So in the end it was (also) in his own interest.

15 July 2026

Local Division Düsseldorf, Fiskaly v SwissBit

UPC_CFI_1332/2026

Access to result of evidentiary seizure?

Facts

1. The claimant requested to receive “the summary of the infringement findings” from the extensive report made by the expert during an evidentiary seizure.
2. At the time of the request, there has been not decision with respect to the revocation of the order granting the evidentiary seizure.

The JR

The JR refused the request, arguing that, as long as there is no decision about the request for revocation, the interests of defendant outweigh the interests of requester 

Comment

In this case the date for the oral hearing in the revocation case was already set. It seems quite logical to wait before providing the claimant with information about the result of the seizure, because, if the revocation is successful, the claimant would not be entitled to receive the requested information.

15 July 2026

Local Division Hamburg, Brita v Ningbo Blue Pluser

UPC_CFI_1881/2025

Non-compliance with PI

Facts

1. On 9 December 2025, the Local Division issued a preliminary injunction c.s. against defendant.
2. On 11 December 2025, the claimant sent the order to the defendant by email.
3. After initially changing counsel, Ningbo Blue Pluser did not comply with the order (to stop offering the infringing product, to give information and to pay the costs). Finally, the new representative of Ningbo Blue Pluser also withdrew and stated that further correspondence should be sent directly to Ningbo Blue Pluser.

The Court

1. Ningbo Blue Pluser has to pay fine of EUR 200,000 within two weeks after service of the order.
2. For each day of non-compliance following the order, a penalty sum of EUR 2,000 will be forfeited.

Comment

1. How effective is a judgment of the UPC against a Chinese defendant without assets in the EU, who offers his products to the EU on a website?
2. Issending an order to the representative of the Chinese company electronically (via the CMS) a valid service under the The Hague Convention?

15 July 2026

Court of Appeal, Qualcomm v Network System Technologies 

UPC_CoA_68/2026; UPC_CoA_69/2026; UPC_CoA_70/2026; UPC_CoA_71/2026; UPC_CoA_72/2026

Court fees on appeal

Facts

1. On 4 March 2024, Network System Technologies (NST) started infringement proceedings against Qualcomm and two Samsung companies.
2. Qualcomm filed a Counterclaim for revocation regarding the three patents at issue.
3. On 6 September 2024, the withdrawal of the cases against the Samsung companies was permitted.
4. On 11 March 2026, the LD Munich revoked patent EP 1 552 669 and dismissed the infringement action. The Local Division set the value of the litigation at EUR 3 million for the infringement case and EUR 4.5 million for the revocation case.
5. NST filed two appeals.
6. On 11 March 2026, the Local Division ruled that another patent was not infringed, set the value of the litigation at EUR 8 (infringement) and EUR 12 million (revocation), and dismissed the Counterclaim for revocation.
7. NST filed an appeal with respect to the infringement decision.
8. On 11 March 2026, the LD Munich decided with respect to a third patent in the same as in the first case. The value of the litigation was set at EUR 3 and EUR 4.5 million.
9. Both parties appealed.

The JR

1. The JR held that the fact that the Registry has completed the validation of formal requirements does not mean that all formalities have been fulfilled The Court remans entitled to make a different decision.
2. The JR states what court fees in appeal are due based on the value of the litigation (see above).
3. The new court fees are applicable if an appeal is lodged after 1 January 2026.
4. A party cannot unilaterally set the value of the litigation at a lower amount. It has to pay the court fee based on the value determined by the Court in First Instance, but can dispute that value as part of its appeal.
5. If the action on appeal would prima facie warrant a lower value, this can be requested from the Court, which may provisionally determine a lower value. However, the final decision will be made in the appeal decision, after the other party has been heard.
6. NST’s request to halve the value of the litigation in appeal, because Samsung is no longer a party, is dismissed, since Samsung was already not a party anymore when the value of the litigation was set in first instance.

Comment

For representatives:

1. It is the Court that has a final say with respect to formalities.
2. In general, the appeal fee is due based on the value of the litigation as determined in first instance.
3. The parties cannot unilaterally decide what the value of the litigation is.
4. If you do not agree with the value of litigation in appeal, you can provisionally ask for a lower fee, but you should (also) make it part of your appeal. 

15 July 2026

Local Division Düsseldorf, CA v Deutsche Telekom

UPC_CFI_672/2026; UPC_CFI_2175/2026

Confidentiality

Order

The Presiding judge refused a confidentiality regime with respect to publicly known information but granted confidentiality to further information apparently under both R. 262.2 RoP and R. 262.A RoP.

Comment

In other cases, the Court of Appeal refuses to rule also under R. 262.2 RoP, stating that this can be decided if an application is made by a member of the public. I find what Düsseldorf does more practical because, if a member of the public asks for information, the Registrar can immediately say that it can only make available the redacted version because the rest is confidential. This can then be challenged by the member of the public who asks for information. If one follows the Court of Appeal, the Registrar has to ask a party which information is confidential and an order under R. 262.2 RoP is necessary (?). 

15 July 2026

Court of Appeal, Siemens v Hologic

UPC_CoA_93/2026

Suspensive effect

Facts

1. Hologic lodged an infringement action against Siemens based on EP 2 352 431.
2. On 10 June 2026, the Local Division Düsseldorf ruled that the patent was infringed and dismissed the Counterclaim for revocation.
3. Siemens appealed the next day and filed an application for suspensive effect on 19 June 2026.
4. Hologic lodged its comments on 3 July 2026.

The Court

1. The Court repeats the basic principles: suspensive effect is an exception which may apply:
   1. if the decision is manifestly erroneous, or
   2. if the appeal becomes devoid of purpose, or
   3. in case of an infringement of fundamental procedural rights such as the right to be heard.
2. The Court states that a summary examination does not reveal a manifestly erroneous interpretation of claim element 4.1 (“in one position”).
3. The Court remarks:
   “23.  Since, even with regard to any numerical values, no manifest error of the Local Division can be identified on summary examination, the Appeal also reserves the right to assess whether the case law of the Court of Appeal cited by the Appellants (UPC CoA, Decision of 2 June 2026, UPC-CoA-882/2025, Kodak vs. Fujifilm), is applicable to the present case, and if so if it leads to the conclusion that the findings of the Local Division are incorrect.”
4. The Court also concludes that there is no violation of the right to be heard. The Court states the following:
   “27. The principle of the right to be heard obliges the court to take note of and give due consideration to the submissions of the parties to the proceedings. Among other things, this principle requires the court to deal with the essential substance of a party’s submissions and, insofar as they relate to a central issue in the proceedings in question, to address them in its reasoning. An infringement of this duty must be presumed if the grounds for the court’s decision allow only the conclusion that the court has completely disregarded the party’s submissions, or if the grounds are based on an interpretation that captures, at most, the literal wording but not the meaning of the party’s submissions. 
   28.  As the Appellants correctly argue, referring to the case-law of the European Court of Human Rights (ECHR, judgment of 24 May 2005, 61302/00, Buzescu vs. Romania), the right to be heard does not require for the court to expressly and exhaustively address each and every argument in detail in its decision. At least the parties’ core arguments must be reflected in it.”
5. Granting an injunction prohibiting manufacture when the only infringing act alleged is “offering” is not a manifest error but is in line with the case law.

Comment

1. Although the Court states that its conclusions are reached after “summary examination”, Siemens gets value for its money because it is sent home with a very detailed and convincing reasoning.
2. Hereabove I have reproduced verbatim consideration 23, which shows that you have to be careful not to read too much into a decision of the Court of Appeal while the final decision is reserved for the main case. However, I do not think that Siemens is going to win the appeal with the argument that, with respect to the interpretation of “in one position”, you have to apply the case law on numerical values. Already grammatically (without studying the description), “one” has many more meanings than “1”!
3. If a lawyer loses a case, he/she often feels that the Court has not paid attention to an argument he/she had made. It is therefore instructive for all lawyers to read considerations 27 and 28 (see hereabove), which perfectly summarize what you can expect from a judgment.

15 July 2026

Local Division Paris, Valeo v Robert Bosch

UPC_CFI_1963/2025; UPC_CFI_1247/2026

Withdrawal / costs

Facts

1. On 12 December 2025, Valeo filed an infringement case against Bosch based on 
   EP 4 144 599.
2. Bosch filed its Statement of defence and Counterclaim for revocation, among other things, alleging private prior use in France, Belgium and Germany, the countries for which infringement is alleged.
3. Valeo filed a R. 263 RoP request for limitation of its claims and a R. 265 RoP request for withdrawal of its action against defendant 5.

The Court

1. Limiting the number of products or the territory for which an injunction is sought is not a withdrawal of an action (R. 265 RoP) but a change of claim under R. 263 RoP. Such a limitation of claims is always allowed (R. 263.3 RoP).
2. The arguments against the withdrawal of the action against defendant 5 are rejected, as the cross-complaint for revocation is not affected by the withdrawal and the claim for private prior use is not part of the cross-complaint but a defence raised in the infringement case. Costs are no reason for not granting the withdrawal.
3. As the proceedings continue, costs will be decided in the main case.

Comment

1. I understand the decision to defer the costs issue to the main case with respect to claim amendments (R. 263.2 RoP).
2. However, defendant 5 is no longer part of the proceedings. R. 265.2(c) RoP states that the Court shall issue a cost decision. If the parties had agreed on the costs, then such a decision would not be necessary. However, it does not seem that there is such an agreement. I also do not see that Robert Bosch Produktie S.A. will get its costs as it cannot be awarded costs at the end of the litigation because it is no longer a party to the proceedings.
3. Let us see what the representatives, if anything, are going to do.

15 July 2026

Court of Appeal, Amazon v Interdigital

UPC_CoA_936/2025

Withdrawal of PI application

Facts

1. This case concerns an appeal against a preliminary injunction in which the Local Division Mannheim granted an order against Amazon not to do anything in the UK courts that would prevent or make it difficult for Interdigital to seek an injunction in the UPC under its standard essential patents.
2. After the oral argument on appeal, Interdigital asks for withdrawal of its application for a preliminary injunction.

The Court of Appeal

The Court of Appeal granted the withdrawal.

Comments

This is somewhat of a cold shower for the interested observer, as we still do not have an answer to the question whether an implementer can ask the UK courts for an interim licence during the time of a rate-setting procedure in the UK and what the value of such an interim licence (or rate-setting) is in the UPC in the light of a contractual FRAND commitment by the SEP holder which contractual obligation does not contain a choice of forum.

16 July 2026

Court of Appeal, Shenzhen Transsion v Ericsson

UPC_CoA_100/2026; UPC_CoA_101/2026; UPC_CoA_102/2026

Settlement

Facts

1. Ericsson filed an infringement case against Shenzhen Transsion in the LD The Hague.
2. The Court of First Instance granted Ericsson’s application for confidentiality measures.
3. Shenzhen Transsion (after having obtained leave for appeal of the Local Division) filed an appeal.
4. The parties settled the (whole) case.

The standing judge 

1. The standing judge allowed the withdrawal (R. 265 RoP).
2. No costs because parties agreed also on costs.
3. Shenzhen Transsion gets 50% return of the court fees.

Comment

Ericsson had invoked three patents in The Hague and also another patent in the Local Division Lisbon. Apparently this pressure was enough to get Shenzhen Transsion to agree with a license.

16 July 2026

Court of Appeal, AIM v TGI Sport

UPC_CoA_108/2026

Rectification

Facts

1. AIM lost the infringement action against TGI Sport.
2. The PI proceedings were disposed of by the Court. AIM had to pay the costs of the PI proceedings.
3. AIM appealed against the infringement decision and against the PI order (as it did not agree with the cost decision).
4. The Statement of Appeal in the PI proceedings also listed TGI Sport Virtual UK as defendant 6, but that defendant was not a defendant in the PI proceedings.
5. The Court asked AIM what the reason for this was. AIM stated that this was a mistake and asked for rectification.

The JR of the Court of Appeal

The Registry checks the formalities, but that does not mean that the Court cannot check and rule on formalities. In this case, the Registry did not notice the mistake, but the Court picked it up. This is a clear, obvious error. The Court allows rectification.

Comment

As already stated earlier, the formalities check by the Registry is unnecessary. It leads to unnecessary delays and extra work for the Registry. The formalities can be (and, as we see in this case, will be anyway) checked by the Court. The same applies to service of documents. That should be done by the party who wants to serve. In practice, that works fine in countries where this is practised. I hope the Rules are changed to this effect. It certainly does not mean that the (sub)registry is out of work. My experience is that very smart people work in the registry and that if these measures would lead to more time they can assist the judges – especially as my suggestion to give each judge a law clerk (“stagiaire”) falls on deaf ears. 

16 July 2026

Local Division Milan, Pirelli v Sichuan Yuanxing

UPC_CFI_556/2025

Rectification

Facts

1. Pirelli filed a R. 353 RoP request for correction of the text of the reasoning in the decision issued on 26 May 2026.
2. The Court had stated: “Pirelli initially renounced the exclusive jurisdiction of the Court with an opt-out declaration dated 30-6-2023. The renouncement was then withdrawn on 26-11-2024”. Pirelli wanted that incorrect statement removed.

Decision

The request was filed within a month of the notification of the decision. The Court acknowledged the error and ordered correction as requested.

Comment

1. Why does Pirelli ask for this correction? Do they want to show that they always believed in the UPC and did not first opt-out to see how good the UPC was?
2. Anyway, by asking for the correction they now have to figure out how the decision is to be executed. Did the Registry already serve the original decision in China? Is that service valid because that was the wrong document? Do they now have to serve also the present order or do they have to serve the decision as amended in the order, or both? Should the Court issue a new decision with the correction and should that be served? I hope Pirelli is not going to regret its action. Sometimes it may be better not to “cercare il pelo nell’uovo”. For the non-Italian speakers there is even a better translation of “splitting hairs”. In Italy they split the hair into four!: “spaccare il capello in quattro”. 

16 July 2026

Court of Appeal, Emboline v AorticLab

UPC_CoA_40/2026

Conditional Counterclaim for revocation

Facts

1. This case concerns an infringement action of Emboline against AorticLab.
2. AorticLab filed a Counterclaim for revocation but declared during the hearing that it made the Counterclaim conditional on a finding that it infringed.
3. The Local Division indicated that that was possible.
4. The Local Division ruled that AorticLab did not infringe and did not decide on the Counterclaim, and ruled that, as the Counterclaim was unnecessary, AorticLab had to bear the costs.

The Court of Appeal

1. The Court of Appeal agrees with the LD Munich that a Counterclaim for revocation can be made conditional.
2. In the case of an appeal where no infringement was found, the counterclaimant may appeal against the decision of the LD not to decide on the Counterclaim.
3. The counterclaimant may also lodge an appeal under the condition that the infringement claimant lodges an appeal. The appeal fee is only due if indeed the infringement claimant appeals. If not, the conditional appeal is considered not to have taken place.
4. On appeal, the conditional Counterclaim for revocation remains conditional unless the claimant in the Counterclaim wants to pursue its claim unconditionally, but then it needs leave to change the claim (R. 263 RoP and R. 222 RoP).
5. If the Court of Appeal finds infringement, it will in general itself deal with the Counterclaim for revocation.

Comment

1. A very important decision! If you make your Counterclaim for revocation conditional and you win the infringement case, there is no ruling about the revocation. If the claimant in the infringement case appeals, you must also appeal. You can also file a conditional appeal and wait and see if the claimant in the infringement case appeals.
2. I recommend always appealing after such a favourable judgment. You do not have to pay the fee as long as the losing party does not appeal and you are always safe.
3. The Court of Appeal should, in the future, also rule about costs. In my opinion, as the revocation, which is made conditional, is clearly lodged as a logical defence against the infringement, it should be the claimant in the infringement proceedings who should (also) pay the costs for the revocation. The decision of LD Munich that the claimant in the conditional revocation should bear the costs because the revocation was not necessary is based on hindsight. It would, in general, be irresponsible for a defendant in infringement proceedings not to also file an invalidity defence.
4. The Munich ruling on costs make it also unattractive for the counterclaimant to make its revocation action conditional while this should be encouraged because it saves the Court and parties time. 

16 July 2026

Local Division Hamburg, Fraunhofer v Acer

UPC_CFI_2231/2025

Production of evidence

Facts

1. The claimant wanted the Court to order a third party to produce, under a highly confidential regime, licence agreements relating to the Opus standard in order to respond to Acer’s FRAND defence.
2. The defendant has expressed that it has no problem with the request.
3. The third party has expressed that it has no problem with the request under the “highly confidential regime”.

The JR

1. The JR granted the request.
2. The JR granted the highly confidential regime.

Comment

The order provides a good example for representatives who act in SEP cases of how to formulate a “highly confidential” request.

17 July 2026

Court of Appeal, Siemens v Hologic

UPC_CoA_94/2026

Mistake

Facts

1. Hologic filed an infringement action in the LD Düsseldorf.
2. Siemens responded with a Counterclaim for revocation.
3. The Local Division found infringement and dismissed the Counterclaim.
4. Siemens appealed and lodged an application for suspensive effect relating to the Counterclaim. It withdrew this application on the same day and asked for a return of the court fees.
5. After a hint by the Registry, Siemens also filed a request for suspensive effect in the infringement case.

The Court of Appeal

1. The Court of Appeal accepted the withdrawal.
2. It found that there was no reason for a cost decision because case is still going on (so R. 265.1(i) RoP is not applicable in a case like this). 
3. You get only 50% back because court fees are due at the time of filing.

Comment

1. The representative for Siemens:
   1. filed for suspensive effect in a revocation case which is not immediate enforceable;
   2. did not file for suspensive effect in the infringement case; and 
   3. asked for the entire court fee back (even though it is already established in the case law that the fee is due upon filing).
2. A small mistake has been made, as this associate has apparently mixed up the case numbers. That can happen, but following the case law would have made it clear that this mistake also has a little price tag: 50% of the court fees.
3. A bottle of wine for the Registry which flagged the mistake would be an appropriate gesture!

17 July 2026

Court of Appeal, Fujifilm v Kodak

UPC_CoA_861/2025

Costs after surrender

Facts

1. Kodak filed a revocation action against European patent EP 4 082 804.
2. Just before the Statement of defence was due, Fujifilm filed an application to dispose of the action as it had unambiguously declared to the European Patent Office the surrender of the patent. It asked to order Kodak to pay the costs.
3. The Local Division ruled that Fujifilm had to pay the costs.
4. Fujifilm appealed the cost decision.

The Court of Appeal

1. The normal rule is that, if the defendant complies with the Statement of claim, it is considered the losing party.
2. However, if the claimant causes unnecessary costs, the general rule does not apply.
3. So, in infringement proceedings, the claimant should first send a cease and desist letter. If it does not do that and the defendant complies with the Statement of claim, the claimant will have to bear the costs. 
4. In the case at hand, Fujifilm never threatened Kodak with its patent. There was no warning letter or any communication between the parties. Pending litigation between the parties with respect to other patents cannot be considered a threat with this patent. The fact that Fujifilm had not yet given up in the opposition proceedings concerning this patent, which had been filed by a different Kodak company, cannot be seen as giving rise to a cause of action for Kodak. 
5. A declaration of surrender to the European Patent Office is timely if done before the expiry of the time period for the defence.

Comment

1. Kodak’s action in the patent war between Fujifilm and Kodak backfired because Fuji timely surrendered the patent and Fuji had never threatened to invoke this patent.
2. A logical decision in line with the case law of the Court of Appeal. If there is no warning/demand letter and litigation is started without such prior demand, the defendant can (before his Statement of defence is due) indicate that he will fully comply with the demands. In such a case, the Court (at the request of the defendant) will dispose of the action and the claimant will bear the costs. 
3. I add to this that what is demanded in the Statement of claim can go beyond what a claimant can obtain in the proceedings. The defendant can, in my opinion, also only comply with what the claimant can obtain in the proceedings. I think about an exaggerated amount of costs (because the claimant had prepared the Statement of claim) which is not justified (because the claimant should have first sent a warning letter) or a demand that defendant put a message on his website that his products are infringing (and there are no exceptional circumstances justifying that). I warn that this is only my opinion and one has to be very careful with thinking that a (part of the) claims is (are) not justified.

17 July 2026

Court of Appeal, Fives v REEL

UPC_CoA_42/2026

Confidentiality on appeal

Facts

1. Fives filed damage proceedings because of infringement by REEL.
2. The LD Hamburg issues a confidentiality regime. Certain information was ruled to be confidential and only accessible for certain persons of REEL.
3. LD Hamburg dismissed the claim for damages.
4. Fives appealed and asked for confidentiality under R. 262.2 RoP and R. 262A RoP.

The Court of Appeal

1. The Court of Appeal repeated what qualifies as confidential information (business secrets and other confidential information – see Article 58 UPCA).
2. In case of a breach, penalties can only be imposed on a party.
3. In the case of someone who is not an employee (anymore), it is possible to rule that they will only get access to the information (as a member of the confidentiality club) if they sign a secrecy agreement with a penalty clause.
4. The request under R. 262.2 RoP will not be decided. This can be done after a member of the public asks for access.
5. You have to ask for confidentiality the first time you include confidential information in the proceedings.
6. The confidentiality regime of the first instance remains in place on appeal. If necessary, the Court of Appeal can change it. 

Comment

1. All very practical and logical!
2. I note that the Court can only impose fines on a party. The party is in my opinion responsible for each breach by their representatives, employees or non-employees (such as experts) who get access via the confidentiality club. The representatives and employees are contractually obliged to keep the confidential information secret but that is not automatically the case for outsiders. So, it is practical that they sign a confidentiality obligation with a penalty clause with the owners of the confidential information. However, as I am of the opinion that the party using outsiders is responsible for their breaches (culpa in eligendo), I think the latter is not really necessary. A party using an outsider should make it clear in its agreement that the outsider will be responsible for any breach of confidentiality. 

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