# 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%2Fnl%2Fnieuws%2Fdetail%2Fupc-unfiltered-by-willem-hoyng-upc-decisions-week-19-2026%26title%3DUPC%20Unfiltered%2C%20by%20Willem%20Hoyng%20%E2%80%93%20UPC%20decisions%20week%2019%2C%202026%26summary%3D "Linkedin") # UPC Unfiltered, by Willem Hoyng – UPC decisions week 19, 2026 11 mei 2026 News Unified Patent Court (UPC) Hot Topic News Below, [Prof. Willem Hoyng](https://www.hoyngrokhmonegier.com/our-team/legal-experts/prof-willem-hoyng) provides his unfiltered views on the decisions that were published on the website of the Unified Patent Court (“UPC”) last week. His comments offer a unique insight into the UPC’s case law, as he chairs the Advisory Board of the UPC and participated in drafting the Rules of Procedure of the UPC. Interested in more of this? Stay tuned and subscribe [**here**](https://mailchi.mp/8fbd8890d03b/upc-unfiltered-by-willem-hoyng) for weekly updates. Find all decisions, commentary and more on our [**UPC Intelligence Platform**](https://upcintelligence.hoyngrokhmonegier.com/). On the go, multi-tasking or just prefer to listen? “Willem Hoyng’s UPC Unfiltered AI Podcast” – your weekly, AI-generated podcast discussing Willem Hoyng’s commentary on UPC case law of last week, offers a convenient alternative. Listen on [**Spotify**](https://open.spotify.com/show/53wwzF7LNSqqouR0wzXgJD?si=ae84739b09904ee1&nd=1&dlsi=71b6a174bdbd4f32) or [**Apple Podcasts**](https://podcasts.apple.com/us/podcast/willem-hoyngs-upc-unfiltered-ai-podcast/id1806092389). #### **30 April 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/2026-04-30%20Order%20R.%20262A%20RoP_signed.pdf) ***Confidentiality of information to be provided*** **Facts** 1. On 11 February 2026, the Local Division granted an injunction against Katun for infringement. 2. The Court also ordered Katun to provide information within one month regarding the origin of the products, sales figures, etc. 3. On 18 February 2026, Katun filed an application for the protection of confidential information regarding the information to be provided to Canon. The defendants opposed the application. 4. On 11 March 2026, the defendants requested a provisional confidentiality order, limiting access to representatives of Canon only, as agreed by the parties. 5. The JR informed the parties that such an interim order was unnecessary. **The JR** The JR found that this request concerned confidentiality of information that the defendant must provide to the claimant pursuant to a court order. As the request should have been made during the proceedings on the merits, it is inadmissible. **Comment** 1. I believe that the decision that the request is inadmissible is simply wrong. As the JR herself states, such a confidentiality request can be made later. However, and I think this is the crucial point, such a request generally does not extend the time period for compliance. Therefore, if a confidentiality request is filed late and/or the compliance period is short, and if a Local Division is extremely busy, as is the case here, the applicant risks that it is too late, unless the JR is willing to grant a stay (or accept a provisional secrecy regime) – but you cannot count on this. The JR can decide that the request is devoid of purpose. For all practical purposes, therefore, a defendant should request confidentiality during the proceedings, even if it has not been decided that they must provide information (for example, if the defendant wins or the demand for information is disproportionate). 2. What I find remarkable in this case is that the parties agreed on a temporary confidentiality regime, which I assume was agreed for the time it took the JR to make a decision (which took her six weeks!). In my view, she should have granted the request as far as it was justified. Information already disclosed without confidentiality during the litigation could not, of course, be brought under a confidentiality regime. 3. The JR is, of course, also right in saying that if the defendant wants the information to be used for limited purposes, it must raise such material defences during the proceedings. If a defendant does not raise a specific defence against such claims, they will be ordered. The same is true if the defendant considers the time to comply too short, or if they otherwise consider the demand too broad. #### **30 April 2026** ***(late published)*** #### **Local Division Düsseldorf, Avago v Telefonica** [UPC\_ CFI\_1648/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-04-30%20R%C3%BCckerstattung%20von%20Gerichtsgeb%C3%BChren_signed_all.pdf) ***Settlement*** **Facts** 1. Before the written procedure was concluded, Avago declared that it withdrew its claim. The defendant agreed. 2. On 11 February 2026, the Local Division accepted the withdrawal. 3. On 24 February 2026, the claimant requested the reimbursement of 60% of the court fees. **The Court** The Court awards 50% of the court costs because, according to the Court, the new table is applicable with respect to requests filed after 1 January 2026. **Comment** 1. It is not clear to me why the representatives of the claimant are mentioned as “Herr” and the representatives of the defendant are not. I do not know. I am sure the Court did not intend to show more respect to the patentee! 2. The LD considers the request for the return of court fees to be a request as meant in Art. 5 of the Decision of 4 November 2025 with respect to the new fees and awards – 10% less! 3. However, that decision is wrong. I refer to the Court of Appeal’s decision of 9 January 2026 in *Juul v NJOY* (UPC\_CoA\_237/2025). Cases that started before 1 January 2026 still fall under the old Rules. Therefore, the claimant was right to ask for 60%. #### **4 May 2026** **Local Division Düsseldorf, Topsoe v SYPOX** [UPC\_CFI\_1696/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Pr%C3%BCfungsantrag%20und%20Befangenheitsantrag_Anordnung_signed_all%20geschw%C3%A4rzt.pdf) ***Partiality during inspection*** **Facts** 1. Topsoe, the owner of EP 3 802 413 for hydrogen production by steam methane reforming, obtained an *ex parte* order for an evidentiary seizure and inspection at the two defendants’ premises. 2. Following the Court’s correction of the *ex parte* order at the claimant’s request, the seizure and inspection took place on 26 November 2025. 3. On 25 December 2025, the defendant requested a review of the order. 4. The defendant requested that the expert and the patent attorney be released from their task due to bias, and to declare that the results of the seizure cannot be used and should be destroyed. 5. Furthermore, the defendant argued: 1. they do not infringe as it is clear that they use a different process; 2. they want an attorney-eyes-only regime; 3. the patent is invalid; and 4. the Court should order a security. **The Court** 1. There is cause for concern regarding an expert's impartiality if a knowledgeable and reasonable observer has justified doubts about the expert's impartiality or independence due to certain circumstances. Such doubts are justified if the aforementioned observer concludes that the expert is likely to be influenced by factors other than their duties. 2. If concerns about partiality are based on the expert report itself, it should be noted that the content of the report alone is not sufficient to cast doubts on the expert’s impartiality. A flawed report or lack of expertise does not necessarily indicate bias. Rather, there must be circumstances indicating a lack of objectivity. 3. The Court dismissed all the arguments except that the claimant must provide security of EUR 500.000,00 if they want to open the reactor, given the possibility of damage, which the claimant has not sufficiently refuted. **Comment** 1. Although experts are supposed to be neutral, they realize why they have been appointed and often approach their work with a certain persistence. In my opinion, this is justified if the Court grants the request for an evidentiary seizure and/or inspection, but only to a certain extent and within the boundaries of the granted request. However, the latter is also often a matter of interpretation. 2. In this case, the Court ruled – correctly, in my opinion – that the expert had not gone too far. During the seizure, the expert even asked the Court for advice about how far he could go, but he did not receive an answer! 3. I mention above “if the Court grants the request”. As I have already said before, these *ex parte* measures (certainly during exhibitions) are very invasive, and should only be granted if it is clear that there is no other way of obtaining evidence, and if it is *prima facie* evident that it is not a kind of fishing expedition or, worse, a “disturbing the competitor” exercise. #### **4 May 2026** #### **Local Division Brussels, Simmons & Simmons v Roche and Organon** [UPC\_ CFI\_1167/2026](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/R.353_UPC_CFI_1167_2026_Signed.pdf) ***Access to file*** **The JR** The JR states that he will issue a new R. 262.1(b) RoP order on the same day, as the earlier had contained a clerical error. **Comment** 1. Neither the old order nor the new order has been published as of 4 May 2026. 2. The clerical error was that one of the names of the representatives was misspelled. 3. Why is the JR making such a fuss? He should just ask the parties to ignore the order, correct the error, and publish the corrected order instead. 4. Finally, my name has been misspelled in several court decisions (for example, “Hoying”), but I have never made a fuss about it. However, I know this is rather personal. My father used to return letters addressed to “Hoying” (instead of “Hoyng”) unopened to the sender with the words “not living at this address” written on the envelope. Those were the times! #### **4 May 2026** #### **Local Division Düsseldorf, OTEC v Steros** [UPC\_CFI\_885/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Aufhebungsanordnung_signed.pdf) ***Costs*** **Facts** 1. On 22 September 2025, the Local Division granted an *ex parte* order for the seizure and inspection of evidence at the Hannover Messe, based on EP 2 983 846. 2. On 17 November 2025, the JR gave the claimant access to the expert’s description, stating that the order of 22 September 2025 would be revoked unless an infringement case had been started within the TRIPS term. 3. On 4 February 2026, the defendant filed a request to revoke the order of 22 September 2025, claiming damages because no case had been filed on the merits. **The Court** 1. The Court revokes the order of 22 September 2025 as no main proceedings had been started. 2. The Court accepts that the defendant can claim damages. However, the defendant did not specify the amount of damages, only requesting costs of EUR 11.390,00. As he should have requested these costs in cost proceedings, the Court dismissed the case for damages. **Comment** 1. In my opinion, this is an incorrect decision. A party is not obliged to request costs in cost proceedings, but can also claim them in the proceedings themselves. In such case, of course, he then has to specify and prove such costs – as was the case here. 2. R. 150 RoP states: “a cost decision may be the subject of separate proceedings”. This rule was discussed in the Drafting Committee, and it was agreed that it was not necessary to claim costs in separate proceedings, as sometimes it is rather simple to decide on costs, or the parties have already agreed on them. 3. This case is a good example of this: it was very easy to decide on costs, and it is impractical, not to mention unfair, that the defendant now has to start separate cost proceedings (incurring further non-reimbursable costs) in order to obtain their (modest) costs. #### **4 May 2026** #### **Central Division Milan, Gilead v Academy of Military Medical Science** [UPC\_ CFI\_552/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/GDPR_checked_552_2025_final%20decision.pdf) ***Revocation action*** **Facts** 1. Gilead requested the revocation of Unitary Patent EP 3 854 403, granted on 18 June 2025, relating to the use of remdesivir for use in treating a disease or infection caused by SARS-CoV-2. 2. The revocation action was started on the day of grant. 3. Remdesivir is known to have an antiviral activity against a diverse panel of viruses. Ten days before the priority date, Prof. Sheahan published a commentary addressing the potential use of remdesivir as an active substance with antiviral properties against the novel SARS-CoV-2. 4. Gilead alleges insufficient disclosure and lack of inventive step. 5. The insufficient disclosure argument was based on the fact that the stereochemistry of the phosphorus was not identified in the formula of claim 1 and 6. **The Court** 1. The Court revoked the patent due to a lack of inventive step. 2. The Court held that the invention was sufficiently disclosed, as separating the two isomers was considered common general knowledge. 3. With respect to inventive step the Court remarked among others: 1. The person skilled in the art, as outlined in Art. 56 EPC, is a fictitious figure representing an average level of knowledge in a specific technical field and whose knowledge reflects the common general knowledge (CGK) at the priority date. This fictitious individual cannot be identified with any real person working in the technical domain of the invention. The skilled person is not required to possess (or disregard) a distinct affiliation, nor is it necessary; therefore, differentiating characteristics such as connections to a specific company are not admissible. 2. A person skilled in the art is objective, rational, and does not fear failure. The defendant incorrectly attributes subjective attitudes to this hypothetical individual by comparing them to Prof. Canard. The skilled person only questions information when there is documented prejudice in the relevant literature, and it is the party's responsibility to highlight proven flaws. Simply suggesting unexpected outcomes is inadequate. Recognizing that risk and doubt are part of scientific progress, the skilled person would not reject a solution due to subjective concerns about possible failure. 3. The distinction between an expectation of success and a mere hope of success is not dependent on the researcher’s subjective state of mind. A reasonable expectation of success exists when the scientific data or experiments indicate that the tested solution can yield a positive result, despite the general uncertainty arising from the necessary experimentation and the application of the scientific method. Therefore, a reasonable expectation of success is based on reason and knowledge of scientific data, even though experts know that the outcome is never certain until it has been the subject of clinical trials. Therefore, the greater the realism or reasonableness of the starting point, the greater the expectation of success. Conversely, hope for success arises when the result is based on assumptions or when there are contradictions in sources, meaning the outcome is considered possible but not reasonable. **Comment** 1. A very detailed, convincing decision! Interesting read! 2. Parties agreed on costs! Bravo! 3. A decision in 10 months! Bravo! #### **4 May 2026** #### **Local Division The Hague, AdvanSix v Krahn** [UPC\_CFI\_2028/2025; UPC\_CFI\_2031/2025 ](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/20260504%20Review%20Order.pdf) ***Preservation of evidence*** **Facts** 1. On 23 February 2026, the Court issued an *ex parte* order for inspection and the preservation of evidence, including the taking of samples, against one Dutch and two Italian defendants. 2. On 17 March 2026, the order was executed. 3. On 16 April 2026, Krahn, the Dutch company, filed an application for review of the *ex parte* order. The two Italian defendants did not file an application for review. 4. The execution of the order included testing of the samples in a laboratory, of which the results were included in the expert’s report. 5. After the report had been sent to Krahn, Krahn indicated to have no confidentiality issues but asked on 29 April 2026 not to release the report to AdvanSix before a decision on the requested review. 6. In view of the urgency, on the same day, the parties were summoned to the oral hearing to be held by video conference the next day. 7. Krahn requested the revocation of the order, and alternatively a release of the expert report after AdvanSix had put up a security of € 50.000 (R.196(3)(b) and R. 196(6) RoP). 8. Krahn argued in essence that AdvanSix had failed to disclose material facts, and could have obtained the evidence in another way without the seizure and inspection order. **The Court (single judge)** 1. The single judge who by appointment of the Presiding judge handled the requests for the inspection/seizure order can also deal with the request for review. 2. The judge recites the relevant provisions and the case law of the Court of Appeal in relation to measures for preservation of evidence: 1. “urgency” is not the same as “urgency” necessary for a preliminary injunction (“PI”) ; 2. the reasonable available evidence for infringement is a lower bar than the burden of proof for a PI; 3. when deciding if an applicant has informed the Court in an *ex parte* application about all the material facts, the following has to be taken into consideration: 1. disputed facts: is the case as presented by the applicant plausible; 2. facts which the applicant could not know; 3. facts which are not considered relevant for the decision. 3. After applying these principles, the judge reaches the conclusion that the order should not be revoked. **Comment** 1. Efficiency, speed and thoroughness! 2. Efficiency: to deal with the request for review with the same single judge that also granted the order. Of course, one can argue this is the butcher verifying the quality of his own meat, but I think efficiency and speed should prevail and often the dispute centers about (new) facts which were not known but should have been known to the judge. 3. Speed: a hearing by video the next day. A decision in three days. 4. Thorough: the judge deals with all the arguments of AdvanSix in 3 days and decides that AdvanSix (a US company) has to put up € 50.000 security for costs. 5. Note: the Italian defendants who were represented by different counsel did not ask for a review. The judge made clear that they cannot benefit from the review requested by Krahn, as required by Krahn. It shows that it is important that if defendants in the same case want to use different representatives, these representatives at least coordinate their defences. #### **5 May 2026** #### **Local Division Mannheim, Hurom v NUC/Warmcook** [UPC\_CFI\_335/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-05-05%20withdrawal%20335_2025_signed.pdf) ***Withdrawal of cost proceedings*** **Facts** 1. The claimant won in first instance in the Local Division Mannheim with a decision of 11 March 2025. 2. The claimant lodged an application for a cost decision one month after the aforementioned decision. 3. After the Court of Appeal set aside the Mannheim decision, the claimant withdrew its application for a cost decision on 10 April 2026. **The Court** 1. R. 265 RoP is applicable by analogy with respect to the withdrawal of a request in cost proceedings. 2. The Court allowed the withdrawal. The defendant had no interest, as the winner of cost proceedings under normal circumstances is not entitled to costs. **Comment** 1. This is another good example of how complicated and inefficient the way costs are calculated and awarded is. After having won in first instance the Court should have been able to order the defendant to pay a lump sum of the costs. I propose an amount equal to 70% of the cost ceiling, subject to special circumstances justifying a lower or higher percentage, which can be argued by the parties. 2. The defendant would have paid these costs without any cost proceedings, and the Court of Appeal would have ruled that they must pay back the received amount and would have ordered the claimant to pay the cost of the first instance (lump sum) and appeal (lump sum). 3. Let’s hope that the Rules of Procedure will be revised accordingly. #### **5 May 2026** #### **Local Division Mannheim, Hurom v NUC** [UPC\_ CFI\_162/2024](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-05-05%20order%20withdrawal%20R.%20354.4%20RoP%20%28162_2024%29_signed.pdf) ***Withdrawal of request for penalty*** **Facts** 1. Hurom had applied for penalties to be imposed on the defendant for allegedly violating the infringement decision of the Local Division. 2. The Court of Appeal overturned the Local Division’s decision. 3. Hurom applies to withdraw of the penalty proceedings. **The Court** allowed the withdrawal and closed the case. **Comment** 1. The logical action taken by the claimant and the corresponding decision of the Local Division. 2. This demonstrates that a decision being immediately enforceable can have serious consequences. An interesting question arises: assume that the Local Division has imposed penalties and they have been paid to the Court. Thereafter, the Court of Appeal reverses the decision of the Local Division. Does the Court have to return the penalties? I would think not because the penalty is the result of not obeying a court decision, and this is a standalone obligation. #### **5 May 2026** #### **Local Division Hamburg, Brita v Ningbo** [UPC\_CFI\_1881/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/1881-2025_0.pdf) ***Penalty sums*** **Facts** 1. On 9 December 2025, the Local Division Hamburg issued a decision granting an injunction against the defendant and ordering the defendant to provide (extensive) information within three weeks. 2. After changing representatives, the defendant informed the claimant on 7 January 2026 that they would accept the order of 9 December 2025. 3. As the parties were unable to reach an agreement, the claimant ordered the defendant to provide the requested information and to pay the costs by 24 February 2026. 4. On 24 February 2026, the defendant’s representative confirmed to the Court that they no longer represented the client. 5. The JR informed the representatives that they were still responsible for the communication between the Court and the defendant. 6. In an order dated 17 March 2026, the Court threatened the defendant with penalty sums. 7. On 2 April 2026, the claimant requested the imposition of penalties. The defendant did not respond. **The Court** 1. The defendant’s failure to provide the information by 31 March 2026 justifies a penalty of EUR 1.000,00 per day (as indicated in the order dated 17 March 2026) until 5 May 2026. 2. As only EUR 1.000,00 per day was indicated in the 17 March order, the Court cannot order a higher amount. However, after 30 April 2026 (the Court meant 5 May 2026), the amount will be EUR 1.500,00 per day. **Comment** 1. Although there is no clear rule for the event that a representative notifies the Court that they no longer represent a party, the Court applied R. 293 RoP (Change of a representative). As long as no new representative has been appointed, the Court holds the representative responsible for the conduct of the proceedings and for communications between the Court and the party concerned. 2. It is unclear to me how the order of 9 December 2025 was served on the Chinese defendant, which, in my opinion, should have been done in accordance with R. 270 RoP in conjunction with R. 274 RoP (in this case, The Hague Service Convention). The Court simply stated that the order has been served “formlich” (i.e., in the required way). 3. The Division has handled this in an impractical way. The Court of Appeal in *Belkin v Philips* (order dated 30 May 2025, UPC\_CoA\_846/2024) showed the more practical way. The Court should have immediately in its order stated penalty sums for each day the information was not provided after a realistic period following service, with a maximum limit (for example, EUR 100.000,00). Rather than two procedures and orders, one order would have sufficed. Furthermore, defendant has now been permitted to ignore the order unpunished until 30 March 2026. Of course, the representatives should have requested it. It still seems difficult for representatives and (some) judges to realize that the UPC is not their national system. 4. If the Chinese defendant has any assets in the EU (?), under the UPC system, the Court, i.e., the Registry, has to go after the money. Would it not be much better to leave that to the claimant? #### **5 May 2026** #### **Local Division Munich, Maxell v Samsung** [UPC\_CFI\_196/2025; UPC\_CFI\_665/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/2026-05-05%20-%20Rectified%20Order%20pursuant%20R.%20105.5%20RoP%20-%20Signed_anonymized.pdf) ***Result interim conference*** **The JR** 1. Value of the proceedings: claim € 2 million, counterclaim (after suggestion by the JR) € 3 million. 2. Parties confirmed that their confidentiality requests are based on R. 262.2 RoP and not based on R. 262A RoP: the claimant’s access or use of the information is not restricted. 3. Parties agreed that it is not necessary to draft the request for injunction in “the German way” (with repetition of the claims). 4. The claimant confirmed that if claim 1 of the patent is invalid, the Court should not consider the dependent claims but turn immediately to the auxiliary requests. 5. The defendants accept to limit their validity attacks to five or six, and the claimant to limit their auxiliary requests (34) to about 10. 6. Parties would try to agree on costs. 7. The JR sets schedule for the oral hearing. **Comment** 1. The international (Swedish) judge is the JR and his influence is immediately clear: he questions if injunction should be formulated the German way with repetition of the whole text of the claims, or in the far more simple “UPC way” such as “not to infringe Unitary Patent no. (…), more specifically by offering etc. product X. 2. Apart from the fact that the JR did the necessary housekeeping in cutting down the number of invalidity attacks and of auxiliary requests etc., he wants the parties to settle on costs. Such settlements are apparently also not known in German practice but in the UPC it slowly starts to become a habit, because the judge try to get parties to agree on costs. 3. I was surprised that parties stated that they only wanted the application of R. 262.2 RoP with respect to their confidentiality requests. I think that this is unwise because it means that there is no confidentiality regime during the litigation, and even if parties have agreed that certain information remains confidential, that does not mean that information in the pleadings and evidence (exhibits) filed in the proceedings and discussed during the oral hearing are confidential, which would automatically mean that R. 262.2 RoP (confidentiality to the public) is not applicable. So parties should always (also) ask for R. 262A RoP confidentiality. If they do not want to limit access for the other party then they simply do not ask for it. So in my opinion if you want application of R. 262.2 RoP you should always (also) ask for confidentiality under R. 262A RoP. 4. The claimant states that if claim 1 (the independent claim) is invalid, the Court should immediately go to the first auxiliary request and not bother about the dependent claims. In general, invalidity of the independent claim for obviousness will also lead to lack of inventive step of the dependent claims, but that is not always the case because the dependent claims may have inventive merit on their own. However, if the independent claim falls, because of lack of novelty, it is very well possible that this is not the case for the dependent claims (certainly in a case of so called “accidental non-novelty”). #### **6 May 2026** #### **Court of Appeal, Lepu v Occlutech** [UPC\_CoA\_900/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/order_CoA-900-2025.pdf) ***Settlement on appeal*** **Facts** 1. On 18 June 2025, the Local Division Hamburg granted Occlutech’s request for a preliminary injunction. 2. Lepu filed an appeal. 3. Lepu’s request for suspensive effect was refused. 4. On 30 April 2026, Lepu filed an application to withdraw the appeal. 5. On 4 May 2026, Occlutech agreed to the withdrawal but asked the Court of Appeal to issue a cost decision. **The Court** 1. allowed the withdrawal. 2. It declared the proceedings closed. 3. As the withdrawing party is generally considered the losing party, the defendant must pay the costs. **Comment** 1. This means that the PI decision is final until Lepu asks for revocation based on R. 213.1 RoP – unless Lepu has agreed not to ask for such revocation. 2. The economic reality is often that if you lose the PI, it is almost impossible to get suspensive effect, which means that you have to leave the market. You need a lot of faith in your case to invest considerable sums in an appeal. Even worse, sometimes you simply cannot afford not to settle due to the severe economic consequences (for example, stopping car production), so you are forced to settle and to accept unreasonably high payments. This highlights the importance of a Local Division making the right decision in these cases! #### **6 May 2026** #### **Local Division Lisbon, Ericsson v Asustek** [UPC\_CFI\_757/2024; UPC\_ CFI\_539/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/DECISION%20757_2024_06.05.2026_SGR_JMP_PR_ML_RL.pdf) ***Infringement*** **Facts** 1. Ericsson had lost preliminary injunction (“PI”) proceedings because of lack of urgency, but the Lisbon Division had indicated that it was of the opinion that indeed Asustek infringed Ericsson’s patent EP 2 819 131. 2. Ericsson filed an action on the merits. **The Court** 1. The patent is valid and infringed. 2. The Court cites extensively the case law and the criteria to be applied according to the Court of Appeal with respect to each point of law to be discussed. 3. It rejects the argument that there is no interest for a revocation action if the patent has expired. 4. It confirms (not surprisingly) the views expressed during the preliminary injunction proceedings. 5. The Court rejects the argument that Asustek is not responsible for its subdomains of which it is only the holder. The Court states that Asustek, as the holder of the subdomain, is responsible for what their representatives do. This is completely different from the question in *Belkin v Philips* where it was not only the responsibility of the holding company but about physical persons who are only liable for acts carried out directly and deliberately by themselves. **Comment** 1. Parties agreed on costs and clarified that costs included everything, referring to a case in Düsseldorf where one party, after an agreement of costs was reached, still claimed travel costs! 2. Of course the Court held that also after the expiry of the patent you have an interest in revoking the patent if you are accused of infringement during the life of the patent. At the same time the patentee has an interest to have the patent maintained on the basis of an auxiliary request (as here was the case). 3. This is all important for the claim for damages. In general, courts are of the opinion that you are also liable for damages if the patent has been maintained on the basis of an auxiliary request because also then the (professional) infringer “should have known” that it was infringing. That is of course the easiest and most simple way of looking at it, but you can, in my opinion, debate if that is correct in all situations. Of course, if one of the dependent claims remains valid, than there is not much discussion possible (you do not even need an auxiliary request because it is a granted claim). I think that if you infringe the granted claims and you find prior art which would invalidate the granted claim, you would still, with the help of a patent attorney, consider if the patentee would be able to file an auxiliary request which you are still infringing. I am not saying that that is always easy, but “you should have known” that it is possible! 4. A decision in 14 months and 6 weeks after oral argument. A clear advertisement for the less busy Divisions and Lisbon is a beautiful city with a much better climate than the busy Divisions! #### **7 May 2026** #### **Local Division Düsseldorf, Ottobock v BrainPortfolio and Ottobock v Teufel** [UPC\_CFI\_1927/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/1927%20Anordnung%202025-05-07%20final_signed%20geschw%C3%A4rzt.pdf); [UPC\_CFI\_1928/2025](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/1928%2005-07-2026%20Anordnung%20final_signed_geschw%C3%A4rzt.pdf) ***PI proceedings*** **Facts** 1. Two requests for preliminary injunctions based on the same patent EP 3 001 984 for a knee prosthesis, concerning the same alleged infringement. 2. The claimant purchased the allegedly infringing device via a third party on 6 October 2025. Testing lasted until 4 December, and the cases were filed on 10 December 2025. 3. The European market introduction took place in March 2025. 4. The defendants argue that there is no urgency, no likelihood of infringement, no novelty and no inventive step. 5. The claimant filed a new main (restricted) claim. **The Court** 1. As the two cases did not run completely parallel in the written phase, the JR allowed an additional pleading so that both PIs could be heard on the same day based on the same arguments. 2. An auxiliary request formulating a new main claim was permitted. 3. The Court concluded that it could not establish whether claim element 1.2b had been met. 4. The Court could also not exclude that the claimant waited too long before starting the proceedings. 5. It is up to the claimant to demonstrate urgency. 6. A claimant should only initiate PI proceedings once they have gathered all the necessary facts and evidence to obtain a PI, but they must begin preparing as soon as they become aware of a potential infringement. 7. The Court considered all the possibilities from 2025 onwards with regard to knowledge of the infringement, and concluded that, at least between June and September 2025, it would have been possible to obtain the allegedly infringing product and carry out the necessary tests. Therefore, urgency was not established. **Comment** 1. Although infringement took place in several countries, and US and Dutch companies were also involved, the claimant insisted on filing in the busy Düsseldorf Local Division, which took five months to decide the PI. 2. German national courts are very strict on urgency, so it is surprising to see that the German patentee, who had already seen the infringing device in the USA in 2024, acted rather slowly. Reading through all the different dates and facts of this case, I think it was rather clear that the case would fail on the grounds of urgency. You have to wonder whether it would not be better to start a case on the merits immediately in a less busy Local Division instead of losing 5 months! #### **7 May 2026** #### **Local Division Brussels, Yealink v Barco** [UPC\_ CFI\_2265/2025 ](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/R.150_Signed_redacted.pdf) ***Cost decision*** **Facts** 1. Barco lost preliminary injunction (“PI”) proceedings in first instance and on appeal because of lack of urgency. 2. Yealink argued in both instances a competence challenge which was dismissed in both instances. 3. Yealink started cost proceedings after Barco was ordered the same amount of € 66.000 as an interim award of costs in first instance and on appeal. 4. Proceedings on the merits are pending. 5. Yealink’s request of 29 December 2025 was only noted by the JR on Saturday 16 March 2026! 6. Yealink asked € 237.257,84 for both PI instances. 7. Barco asked to compensate costs it had incurred to defend the competence challenge of Yealink. **The JR** 1. The JR awards an X amount to Yealink after stating that the ceiling for recoverable costs for appeal should be lowered with 50%. 2. Although Barco did not file for cost proceedings in time, it could still do so because the case on the merits is still pending. 3. If you use your own translators during the hearing, then those costs are not reimbursable. 4. If you do not dispute certain costs then they are in principle reimbursable. **Comment** 1. This case perfectly shows how ridiculous the cost system of the UPC is. Here we have a JR who first of all learns about the case months after it is filed. 2. Then the JR does a Herculean effort to get through all the different arguments of the parties, ending up at an amount which is redacted because apparently he allows confidentiality to all of Barco’s costs (why is that necessary?). 3. Reading all this (which I do not recommend you to do) led me to think: 1. the UPC should adopt a simple system! 2. this JR apparently likes cost proceedings; 3. the parties should not have spent all their money on cost proceedings and agree or postpone it to after the case on the merits; 4. If I would have been the JR (but I admit: I am not patient, polite and nice enough), I would just have stayed the cost proceedings until the end of the case on the merits. #### **8 May 2026** #### **Court of Appeal, Adobe v Keeex** [UPC\_ CoA\_35/2026 ](https://www.unifiedpatentcourt.org/sites/default/files/files/api_order/Order%20R%20220.%283%29%20RoP%20%28EN%29.pdf) ***Discretionary review*** **Facts** 1. Keeex started infringement proceedings before the Local Division in Paris on 14 June 2025. 2. On 17 December 2025, Adobe filed a request to dismiss all claims with respect to non-UPC countries on the basis of R. 334(h) RoP. 3. The Judge-Rapporteur (“JR”) of the Local Division dismissed the request, and the panel dismissed the request for review. 4. Adobe filed a request on 24 February 2026 for discretionary review. 5. The JR asked Adobe if they still wanted to pursue their request after the decision of the Court of Appeal of 13 March 2026 (UPC\_CoA\_922/2025). 6. Adobe refused. **The JR** 1. The request for discretionary review is admissible because the Paris Division mentioned R. 220.2 RoP but did not grant leave for appeal, as was explicitly requested. 2. The order of the Paris Division is not manifestly incorrect and does not raise a fundamental question of law necessary to be decided because of diverging opinion between Local Divisions. 3. The fundamental legal question has in the meantime been answered. 4. The application is dismissed. **Comment** 1. Adobe should of course have followed the line of the JR. The Court of Appeal had decided (unsurprisingly) that Article 7(2) of the Brussels Ibis Regulation does not give jurisdiction for non-UPC countries. So what was the interest for Adobe? Adobe should make a new application under R. 334(h) RoP (also suggested by the JR!). That Rule gives a JR the possibility to dismiss a claim summarily if it does not have any chance of succeeding. **– 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 –**