CUP&CINO v ALPINA (UPC_CFI_519/2024, UPC_CFI_47/2025 & UPC_CFI_52/2025)

• These proceedings concerned three of CUP&CINO's patents for methods of producing milk foam. The Düsseldorf LD made an early decision not to bifurcate and to hear Alpina's revocation counterclaim alongside CUP&CINO's infringement claim.
• Under Article 33(3) UPCA, where a defendant counterclaims for revocation in proceedings for infringement brought in an LD, the LD must decide whether to proceed with both actions, bifurcate the case and refer the revocation action to the CD or to refer both actions to the CD. If the LD hears the counterclaim itself, a technically qualified judge must be appointed.
• Rule 37.1 RoP requires the panel to decide the approach as soon as practicable after the close of the written proceedings. However, under Rule 37.2 RoP, it may take an earlier decision if appropriate having considered the pleadings and given the parties an opportunity to be heard.
• Here, the Düsseldorf LD stated that "[s]ince the parties raised no objections to such a procedure, the question of how to proceed…could be decided before the conclusion of the written procedure that the parties".  
• It exercised its discretion to hear both the infringement action and revocation counterclaim. It noted that the technology was "rather moderate within the known spectrum of patent disputes", that an early decision under Article 33(3) UPCA was sensible for reasons of efficiency, and it was in the interests of procedural economy to appoint the technically qualified judge early, so their availability could be taken into account in scheduling.

This analysis is based on a machine translation of a decision not available in English.