Latest substantive UPC decisions

• Swarco brought an infringement action against Strabag. In its defence, Strabag referred to a report that had been commissioned by Chainzone (the intervener for Strabag). This report had been submitted to the Vienna LD without any request for confidentiality.
• Strabag submitted a request for certain elements of the report to be classified as confidential information pursuant to Article 58 UPCA. This was based on the fact that the information in question concerned Chainzone's internal know-how.
• The Court of Appeal highlighted that Rule 262 RoP does not automatically grant protection against the other party disclosing the information, it merely concerns the accessibility of written submissions to members of the public. An order under Rule 262A RoP is necessary to restrict the use of information by a party to the proceedings. However, a request under Rule 262A RoP must be made at the same time as lodging a document containing the evidence. Therefore, it was not open to Strabag and Chainzone to request confidentiality under Rule 262A RoP in respect of certain elements of the report.
• However, the Court of Appeal granted the application to treat other elements of the evidence as confidential under Article 58 UPCA. The court found that findings related to product characteristics were not readily available to third parties and could only be determined after time-consuming analysis. This fact, alongside the commercial value of the information and the steps Chainzone had taken to keep it confidential, meant that the elements of evidence required confidentiality.

• Headwater filed another infringement action against Samsung this time in the Munich LD, arguing that its patent relating to "verifiable device assisted service policy implementation" was infringed by mobile devices with an operating system of Android 7 or higher. In turn, Samsung filed a revocation action on the basis of lack of novelty, lack of entitlement and added matter.
• The technology involves data saving functionality, which had been a key element of Samsung's products including its 'Galaxy S' range of smartphones and tablets. The patent claims a wireless end-user device which seeks to address the problem of providing more refined service plan offerings to consumers while ensuring efficient management of network capacity.
• In making considering added matter, the court applied the standard set out by the Court of Appeal in Abbott v Sibio. On this basis, the Munich LD found that the patent was invalid for added matter. The patent as filed included verifiability as an integral part of the invention, whereas the patent as granted did not include this feature. In addition, several other features were not disclosed in the patent as filed, nor were the combination of such features.
• Consequently, the Munich LD revoked the patent and Headwater's infringement action was dismissed.

• This decision involved an application for costs. The court had previously dismissed Alexion's application for provisional measures, and the appeal was dismissed.
• Samsung Bioepis (SB) made an application for the costs of two UPC representatives, four patent attorneys and two English solicitors. SB justified the inclusion of the two English solicitors as they were co-ordinating the proceedings across Europe and parallel nullity proceedings were pending in England. SB further explained that the expert had been identified by the English solicitors and their involvement "led to costs savings for the UPC representatives in relation to the identification of prior art, development of technical arguments, expert searches, expert interviews, the preparation of expert opinions, and the preparation of the commercial witness declarations."
• The court explained that Article 69(1) UPCA sets out that "reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity requires otherwise, up to a ceiling in accordance with the Rules of Procedure." The court held that, in this context, "'reasonable' essentially means 'necessary'". The decisive factor is whether the measure that incurred the costs was "objectively necessary and appropriate for achieving the legitimate object of the proceedings".
• The Hamburg LD decided that the litigation fees for the two UPC representatives and patent attorneys were justified. There was no duplication caused by SB changing patent attorneys during the proceedings.
• Regarding the English solicitors, the court explained that SB had failed to provide a proper explanation as to why it was appropriate and necessary for them to be involved in the proceedings. Therefore, the costs claimed were not recoverable. The court stated that:
• no specific details were provided explaining how their involvement led to efficiency gains;
• the general statements that the English solicitors were co-ordinating the proceedings in relation to the patent across Europe and parallel English proceedings gave no concrete indication that the activity was of value to the UPC proceedings; and
• the court also saw no concrete indication of value by explaining that the English solicitors had been involved in the EPO proceedings.
• The Hamburg LD did acknowledge that it "might be possible that the involvement of the English solicitors led to cost savings for the UPC representatives in relation to the identification of prior art, development of technical arguments, expert searches, expert interviews, the preparation of expert opinions, and the preparation of the commercial witness declarations." However, SB did not give any detailed information on these points.
• Additionally, the costs attributed to the English solicitors were higher than those incurred by the five legal representatives and patent attorneys, which contradicts the principle of efficiency.
• The court also did not grant costs for the travel expenses of the patent attorneys arriving two days before the oral hearing as there was no indication that the early arrival was for preparatory meetings before the hearing, because both only arrived on the evening before the hearing.

• This case involved the substantive hearing of an infringement action brought by TEXPORT. Preliminary issues regarding jurisdiction were previously dealt with by the Nordic-Baltic RD..
• The patent in suit related to a fabric structure for protective clothing, in particular for firefighting jackets and trousers. The structure was made up of layers of different fabrics, which included a layer of fabric with a "waffle structure". The attacked embodiments were two different firefighting suits, which both contained a protective fabric structure. These suits were marketed and sold by Sioen.
• Sioen disputed that TEXPORT had the legal standing to bring the infringement claim as it was not the proprietor of the patent. TEXPORT claimed that it was the exclusive licensee to the patent, which Sioen disputed. However, shortly before TEXPORT's statement of claim was filed, they submitted a document wherein the proprietor of the patent confirmed that TEXPORT was the exclusive licensee to the patent. The court found that this evidence was sufficient to establish standing.
• When constructing the relevant claims, the parties disagreed on the interpretation of "waffle structure". TEXPORT argued that a wider interpretation was appropriate, encompassing any fabric having a three-dimensional structure resembling a waffle. Sioen argued that the term should be interpreted narrowly to mean a particular method of knitting the fabric. The court preferred TEXPORT's interpretation, finding that nothing in the patent justified limiting the interpretation to particular knitting technologies.
• The court found that Sioen had infringed TEXPORT's patent at least in Latvia and Portugal through the manufacture and sale of its products. Among other remedies, the court issued an injunction covering the UPC contracting member states in which the patent was in force, interim damages, and ordered that a full assessment of damages would take place at a subsequent hearing.

• Headwater brought infringement proceedings against Samsung. Headwater's patent relates to a wireless end-user device that controls application access to network services based on whether the application is running in a foreground or background state. Headwater claimed that Samsung infringes the patent through the 'Data Saver' functionality in System Android 7.
• Samsung counterclaimed for revocation of the patent, arguing that the patent was invalid due to added matter, lack of novelty, inventive step, and lack of entitlement.
• The Düsseldorf LD found the patent to be invalid, concluding that the subject-matter of claim 1 extended beyond the content of the earlier patent application as filed, constituting added matter under Article 76(1) EPC. Specifically, the court held that the earlier application did not disclose the determination of whether a device application is running in a background or foreground state, nor did it disclose the control via an API to selectively block or allow access based on this determination.
• One notable aspect of the case arose in relation to Rule 9.2 RoP. Headwater had raised a line of added matter arguments at the oral hearing, which related to a passage of one of the documents under consideration. The issue had been raised from the outset, but the new argument was based on a different passage of a lengthy document and the court and the other party should not be forced to "deal with it from scratch". To allow the argument would undermine the front-loaded nature of the proceedings as established by the RoP and  which is central to UPC procedure. The Düsseldorf LD noted that the argument could easily have been put forward in accordance with the time limits set by the RoP and therefore the court must exercise its discretion under Rule 9.2 RoP to disregard the argument. In any event, the court stated that the argument would fail on the merits, so the intervention was not ultimately consequential to the outcome.
• The court also addressed Samsung's lack of entitlement arguments. The Düsseldorf LD confirmed that Headwater did have standing to sue as it was the registered proprietor of the patent in suit in all national patent registers of the UPC contracting member states in which it sought an injunction. Thus, the presumption of Rule 8.5(c) RoP applied. The presumption of the register was not rebutted by Samsung's arguments regarding alleged co-ownership.
• Due to the court's invalidity finding, the Headwater's infringement claim failed.

• Malikie brought infringement proceedings against Discord. Discord filed a request pursuant to Rules 361 and 362 RoP alongside their defence and counterclaim for revocation. In their request, they argued that Malikie's infringement claim should be barred in relation to the German part of their patent due to a failure to comply with s 25 of the German Patent Act (GPA).
• Section 25 of the GPA requires that patentees that are not based in Germany must have appointed an authorised lawyer or patent attorney before they can participate in proceedings in front of the German Patent and Trade Mark Office or Federal Patent Court.
• The Mannheim LD dismissed Discord's request, finding that s 25 is not applicable to proceedings before the UPC because it merely constitutes a procedural provision for actions in front of the German courts. Given that the UPC is designed to have its own procedural framework, it held that this rule should not be applied in this case and the request should be dismissed. In any event, the Mannheim LD stated that even if s 25 were applicable, the requirements of Rules 361 and 362 RoP would not be met. This would constitute a procedural defect that the patentee would be allowed to correct.

• A confidential claimant filed a revocation action against Essetre in the Paris CD, arguing that Essetre's patent relating to a machine for machining walls was invalid for lack of novelty, lack of inventive step, lack of clarity and added matter. Essetre had made an application to amend the patent as a principal, unconditional request and various auxiliary requests.
• In considering claim interpretation, the Paris CD's confirmed the role of contextual factors in interpreting terms in patent documents. While the patent claim is the decisive basis for determining the protective scope of a European patent, the description and drawings must always be used as explanatory aids for interpretation of the claim. While terms used in patent documents should be given their normal meaning in the relevant art, the description and drawings, in the context of the contents of the documents and not in isolation, may give terms a different meaning. As such, they may represent the patent's "own lexicon". This assessment must be carried from the perspective of the skilled person.
• The case related to a patent for a machine for machining walls and, in particular, walls made of wood or multilayer walls. Claim 1 (feature 1.2) included reference to "a working surface for resting a wall" [emphasis added].  Essetre argued that the reference to "a working surface" should be interpreted to mean "one working surface". The claimant disputed this, arguing that this feature should be interpreted as part of an open list, and that the claim leaves open the question of how many working surfaces should be configured.
• The court held that the ordinary context of the phrase, along with the context of the description and drawings of the patent, show that the phrase should be interpreted as meaning "one working surface". In reaching its decision, the court held that the skilled person would understand from the patent documents that there would be a single working surface formed by two sub-surfaces. In addition, the court noted that throughout the patent the phrase "the working surface" always appeared in the singular.
• In light of the court's claim interpretation, it ultimately rejected the claimant's invalidity arguments. The patent was maintained in amended form (the principal amendment) and Essetre's auxiliary requests were deemed moot and not considered further.

• Following proceedings between the parties, OrthoApnea filed an application for payment of costs pursuant to Rule 151 RoP. The application sought an order that the defendant/respondent pay the costs of the proceedings, estimated at €92,814.62, to be increased by statutory commercial interest from seven days after service of the decision.
• OrthoApnea argued that decision of the Administrative Committee on the ceiling of recoverable costs (€38,000) was in "stark contrast" to the actual costs incurred and therefore the ceiling should be increased. The costs proceedings were ultimately stayed pending an appeal decision on the merits by the Court of Appeal. The respondent sought for the costs proceedings to be resumed. The Brussels LD confirmed that the proceedings should be resumed and that OrthoApnea should be regarded as the "successful party" in light of the Court of Appeal's decision.
• The Brussels LD confirmed that an increase (or decrease) of the recoverable costs ceiling should be requested as soon as possible in the proceedings and that a request made during the costs proceedings should generally be considered late. In this case, OrthoApnea should have known the complexity of the proceedings and multi-language requirements therefore could have argued for a higher ceiling at the start.
• The court also noted that it has a high degree of discretion in making use of the following "safeguards": i) costs (including representation costs) should be reasonable and proportionate for the successful party to claim them; ii) in applying the general rule (that the unsuccessful party pays), the legal principle of equity should be used; iii) in cases of partial success or in exceptional cases, the court may order parties to bear their own costs (or part of them); and iv) unnecessary costs for the court or party should be borne by the party that caused them, which may imply that a successful party may be order to (re)pay those costs.
• Elements that can be taken into account to increase the ceiling include the complexity of the case and the multilingualism of the proceedings. When requesting an increase, the requesting party should (to a certain extent) take into account the financial position of the all the parties and the principle of the right of access to a fair trial. Elements that be taken into account to reduce the ceiling include the (economic) survival of the applicant party if the ceiling is applied. The court would have to take into account the procedural conduct of the party, the ceiling in comparison to the annual turnover of both parties, the economic activity of both parties and the effect that a reduction would have on the other party (i.e. the successful party).
• The Brussels LD held that claimed costs are considered "facts". If they are disputed then it is up to the claimant to adduce evidence to support the alleged "fact". The standard of proof is no different from or lower than that applicable to other "facts" submitted in the course of UPC proceedings.
• In this case, OrthoApnea failed to provide evidence for a higher costs ceiling. In relation to representation costs, OrthoApnea's argument that providing additional evidence to prove the costs were actually incurred would be "unprecedented" in Dutch practice was given short shrift. The court noted that they were not in Dutch practice but in the UPC and the burden and standard of proof is clear in the UPCA and the RoP.

• This is a decision of the panel in the Mannheim LD, considering the judge-rapporteur's decision on the value in dispute in the case of an infringement action with a FRAND counterclaim. The panel upheld the judge-rapporteur's decision.
• The Mannheim LD confirmed, contrary to Samsung's arguments, that a FRAND counterclaim is not a "mere defence to the infringement action" and therefore its value in dispute is not limited to the value in the dispute in the infringement action. Provided that the FRAND counterclaim is not restricted to a licence for the patent in suit only, it expands the subject matter and therefore the value of the dispute beyond the infringement action. The objective interest of the counterclaim "goes beyond fending-off the infringement action".
• The panel also noted that just because a FRAND counterclaim is not listed in the fee basis does not justify the conclusion that the FRAND counterclaim does not attract court fees. The fee limit for a counterclaim for revocation does not apply by analogy to a FRAND counterclaim. There are reasons for limiting the fees in respect of a revocation counterclaim that do not apply to a FRAND counterclaim. By filing a FRAND counterclaim, the defendant is seeking a licence agreement that goes beyond the patent in suit and, therefore, is not disadvantaged by having to pay fees that exceed the fees for the infringement action. If the defendant is successful, it will receive more than if it merely defended itself against the infringement action. As such, higher fees than those for an infringement action are not disproportionate or unfair.

• This decision concerned enforcement proceedings following the Mannheim LD's decision on 2 April 2025, which found Fujifilm's German patent relating to planographic printing plates valid and infringed by Kodak. Fujifilm sought an order against Kodak for non-compliance with the court's order relating to the provision of information concerning the infringement and the recall and destruction of the infringing products.
• Fujifilm argued that appropriate notification of enforcement of the operative parts of the court's order had been made to Kodak and a certified translation had been provided for one part of the court's order (relating to the destruction of the attacked embodiments) and this was all that was required because this part of the judgment required the support of the national authorities to enforce, whereas the other parts of the order were in the hands of the UPC. Fujifilm also maintained that Kodak sought to engage in "delaying tactics" by submitting unfounded confidentiality requests.
• The Mannheim LD accepted Fujifilm's application and imposed a penalty on Kodak to "punish their shortcomings and disobedience with the operative part of the decision". The court imposed a three-pronged penalty regime: i) a lump sum penalty payment of €100,000 for the past period of infringement; ii) a "moderate daily penalty" of €2,500 and a time period to catch up on what should have already been provided; and iii) "drastic penalty payments" of €10,000 a day (which could be increased on further application from Fujifilm) to be imposed if Kodak was still not prepared to comply.
• The court made some general observations regarding enforcement requirements, setting the tone that the UPC will not allow procedural points to be used by a party to avoid or delay complying with an order.
• The court found that the general requirements for enforcing the order were fulfilled. As the court had not put the enforcement of the order under preconditions, it said it was clear that from the date of service compliance with the order was mandatory. As such, no warning of enforcement by Fujifilm was necessary.
• In addition, the requirements for the order to be translated had been complied with. In this case, the proceedings were conducted in English and Kodak was doing business not only in Germany but throughout Europe and worldwide and there was no reason for the parts of the decision enforced only by the UPC to be translated. In agreement with Fujifilm, where it relied on national authorities to help with enforcement, then a translation of that part of the order was required, which Fujifilm had done.

• EOFlow is a medical device developer and manufacturer based in South Korea that makes insulin pumps. Insulet is also a medical device company based in the USA that makes a management system for the delivery of insulin. Insulet is the proprietor of a European Patent with unitary effect (EP 327). EOFlow made a revocation claim against Insulet's patent in the Milan CD, arguing lack of patentability pursuant to Article 138(1)(a) EPC and Article 65(2) UPCA, lack of novelty over various prior art documents, and lack of inventive step. Insulet also lodged a counterclaim for infringement.
• The revocation action (and Insulet's infringement counterclaim) was brought by EOFlow subsequent to Insulet's ex parte application for a preliminary injunction in the Milan CD and a second ex parte request before the Milan LD against the main European distributor of EOFlow's pump. The Milan CD rejected the preliminary injunction request but this was overturned by the Court of Appeal and the preliminary injunctions were ordered.
• Insulet also applied to obtain security for costs, arguing that EOFlow's financial position had deteriorated due to the outcome of litigation involving the same patent before the US courts and that insolvency was likely to occur in the near future. The Milan CD ordered EOFlow to pay a security deposit. At the interim conference in these proceedings, EOFlow declared that the security had not been paid and that the company was unwilling to proceed with payment. Insulet argued that a decision by default should be ordered as a result of the non-compliance with a court order. EOFlow insisted on an oral hear and Insulet requested a decision by default for the revocation action and infringement counterclaim.
• The Milan CD held that EOFlow's revocation action must be dismissed by default. The court noted that Rule 355.2 RoP only applies when the decision by default is given against the defendant and noted the difference between the use of the term "party" in Rule 355.1 RoP and the terms "claimant" and "defendant" in Rule 355.2 RoP. Thus, an action for revocation or infringement cannot be upheld on the merits solely to punish the defendant for procedural conduct. However, if the claimant omits a step that the court considered necessary to ensure the fairness of the proceedings and the proper balance of the parties' rights, the decision by default is based solely on non-compliance and results in dismissal of the case.
• Here, EOFlow was the claimant in the revocation action and therefore the requirements for a decision by default were met: i) non-compliance with a legally issued order by EOFlow; and ii) a request for a decision by default by Insulet. The Milan CD stated that EOFlow knowingly evaded an obligation imposed by the court, which impaired the trial and left Insulet with no option but to continue the legal proceedings in the revocation action without reasonable security for recovering foreseeable legal costs. The court held that its interpretation of the applicability of a decision by default due to non-compliance by the claimant was in line with the ratio behind Article 69(4) UPCA, which protects a defendant against an insolvent claimant.
• However, the court decided not to rule by default in the infringement counterclaim and instead dealt with the merits of the case. On the merits, the infringement action was held to be well-founded. After detailed analysis of the patent and the attacked embodiment, the court held that all of the features of claim 1 were infringed by EOFlow's pump – it fell entirely within the scope of the claim.
• The court ordered a permanent injunction in this case because of the likely risk of repetition (which can be presumed if one case of infringement has been shown). It was for the defendant to dispel the presumed risk of repetition and, in this case, EOFlow had not done so.
• Insulet was also awarded damages, with an interim payment of €230,000 ordered to be paid under Rule 119 RoP and Article 68 UPCA. The court also ordered corrective measures, ordering that EOFlow recall the infringing product from commercial customers and remove any infringing products from the market, and provide Insulet with information relating to the infringement.
• EOFlow was also ordered to bear the costs of these proceedings, with an interim award set at €200,000 under Rule 150.2 RoP. EOFlow also had to bear the costs of the preliminary injunction litigation, which totalled €162,292.

• This case confirmed the distinction between the length of the time limit and the starting point of the time limit under Rule 198.1 RoP (revocation of an order for preservation of evidence in the event of late initiation of the proceedings on the merits).
• The applicant (Nanoval) applied for measures to preserve evidence and an inspection (Rule 192 RoP et seq.). The court made the order without hearing the respondent (ALD Vacuum). As per Rule 198 RoP, the applicant has 31 calendar days or 20 working days (whichever is longer) from the date specified in the court's order to initiate proceedings on the merits.
• In the Munich LD's order on 3 February 2025, the court had specified the starting point of the time limit was to be 28 February 2025. This date, however, was based on the assumption that the court would receive the expert's report by 28 February 2025. The expert did not submit their report by this date and, in coordination with the court, the submission deadline was extended several times. The report was evidentially made available on the CMS on 18 March but the applicant's representatives were instructed to keep the report confidential from the applicant until the confidentiality requirements had been clarified. In the court's procedural order of 18 March 2025, the court noted that the start of the time limit was updated to run from the day on which the expert's report and the results of the inspection were made available to the applicant.
• The respondent approved a redacted version of the report on 31 March 2025 and the judge-rapporteur ordered the redacted version be made available to the applicant on 2 April 2025. The applicant went on to initiate proceedings on the merits on 3 May 2025.
• The respondent argued that the applicant did not file the main proceedings within the required timeframe, which it said ended on 31 March 2025, and it applied to revoke the order to preserve evidence under Rule 198 RoP. The court disagreed, finding the respondent's application for revocation unsuccessful.
• The court was clear that within the scope of Rule 198.1 RoP, there is a distinction between the length of the time limit and the starting point of the time limit. There is no judicial discretion to increase the length of the time limit (e.g. 40 calendar days instead of 31 calendar days), but the determination of the time limit starting point is at the court's discretion. This discretion includes a subsequent change of the starting point, which may be prompted by, for example, an expert's inspection report being submitted late.
• If the judge-rapporteur changes the starting point of the time limit under Rule 198.1 RoP, the procedural order can be submitted for review under Rule 333 RoP (review of case management orders). The application for review must be filed within 15 days, otherwise the order changing the stating point of the time limit becomes final.

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

• The Paris CD rejected Sibio's revocation action (based on added matter and lack of novelty and inventive step) against Abbott's patent relating to a wearable blood-glucose monitoring device.
• This was a parallel action to infringement proceedings between the same parties in The Hague LD. In that action, in February 2025 the Court of Appeal (CA) reversed a rejection of provisional measures against Sibio, holding that the patent was likely valid and infringed. The infringement case was ongoing at the time of this decision, with Sibio recently having filed a revocation counterclaim.
• In this case, the Paris CD first addressed several procedural issues.
• Firstly, it considered Rule 75.3 RoP which requires that, where a revocation counterclaim is brought in parallel infringement proceedings between the same parties, the CD should stay any 'freestanding' revocation claim. Here, however, the counterclaim in the infringement case had been filed after the oral proceedings in the revocation action. The court held that the principles of flexibility and efficiency set out in the Preamble to the RoP meant that the rule should not apply in these circumstances and gave judgment.
• Secondly, it rejected a new novelty attack and attempt to extend the added matter attacks to the dependent claims that Sibio had introduced in its reply to Abbott's defence. The court pointed out that a claimant in revocation proceedings must specify the grounds for invalidating the contested patent in detail, as well as the prior art documents relied on, in its original claim. New facts and arguments may be admitted in response to the defence, but the court held that Sibio's new arguments did not follow the defence and there were no objective obstacles to their earlier presentation.
• The new novelty attack was based on prior art that was already in the case. However, whilst Sibio had analysed it for inventive step, it had not done so for novelty. The court held that Sibio's mere "general reference" to the fact the document would be used to challenge novelty or inventive step was insufficient. In order to establish that it was being used to challenge novelty, Sibio should have "provid[ed] a detailed analysis of the document with respect to novelty" in its original claim. In relation to the added matter attacks, the court noted that, although dependent claims are subordinated to the independent claims, the grounds for their revocation must be stated at the outset, as this is part of the overall challenge to the patent.
• Thirdly, the court allowed six auxiliary requests to be filed by Abbott. Sibio had objected to these on the basis that they were not filed using the correct form under Rule 30 RoP, meaning that the Court of Appeal was unaware of them in the parallel action, which Sibio alleged might have affected its decision. The Paris CD noted that the right to request amendment is an "essential part of the right to defend" a patent and a "substantive right" under Article 138(2) EPC and Article 63(3) UPCA. It held that "giving greater weight to the electronic form than to the substantive content would violate the principles of proportionality and fair trial".
• The Court of Appeal had considered and rejected added matter attacks in the provisional measures appeal. The Paris CD noted that, while the Court of Appeal's reasoning was not binding as it only made a summary assessment, it "cannot, however, be disregarded, considering the authority of the issuing body".
• The Paris CD nonetheless made its own assessment, applying the so-called 'gold standard' test of direct and unambiguous disclosure. It emphasised that "strict compliance with the requirements of the gold standard…is of paramount importance for legal certainty". Nevertheless, it went on to reject the attacks.
• The court also rejected the novelty and inventive step attacks. One novelty attack inter alia required a combination of two embodiments, which the court was "not convinced were…disclosed in combination…, at least not in a direct and unambiguous manner". The other failed to disclose all features of the independent claims.
• For the inventive step attacks, the first item of prior art related to another on-body device for glucose monitoring. However, there were significant differences from the patent. The Paris CD found that Sibio had "not identified a clear incentive in the prior art for the skilled person to modify the device" in the significant ways required and "not convincingly explained why the skilled person would make such a modification, how exactly they would make this modification, and whether the modified device would still be suitable". Similarly, it rejected the second inventive step attack, holding that Sibio had "not identified any pointer in [the prior art] which would motivate the skilled person to endeavour to carry out this dramatic design change, let alone which would teach them how to carry it out in practice".
• The court did not consider the attacks it held were late filed, so these would need to be considered on appeal or remitted if the Court of Appeal were to overturn the Paris CD's procedural ruling.

• This decision concerned the alleged infringement of Edwards' patent concerning a "delivery system" product which enables a cardiac surgeon to implant a heart value using minimally invasive techniques (avoiding the need for open-heart surgery). Meril was a medical device company and created the Navigator which also included a balloon catheter delivery system. Meril raised revocation counterclaims. Edwards also made conditional applications to amend the patent.
• With regard to the skilled person, the parties agreed that this would be a team. Edwards argued that the team would be composed of a medical device engineer and an interventional cardiologist. Meril argued that it would also include a cardiac surgeon. The Nordic-Baltic RD disagreed with Meril, noting that including a cardiac surgeon would be "unnecessary" since the surgery the apparatus claimed in the patent would be catheter-based cardiac procedures and an interventional cardiologist would be familiar with this. Nonetheless, the court noted obiter that the outcome of the case would have been the same if a cardiac surgeon had been on the team.
• With respect to claim construction, the Nordic-Baltic RD decided that Meril's position on claim interpretation (specifically in regard to the meaning of "elongated shaft" in the patent) was not supported by the patent and was therefore incorrect. The court held that the skilled person would take the broader view that the technical object of the patent and solution specified in the patent's claims was independent from the construction of the catheter and applied to catheters in general.
• Meril's validity attacks were based on added matter, lack of inventive step and insufficiency. Meril relied on combinations of prior, as well as a combination of prior art and prior use of the CoreValue system, and prior art and CGK. None of the invalidity attacks were successful and Edwards' patent was upheld as amended.
• With regard to infringement, because the court favoured Edwards' claim construction, it also concluded that Meril's device literally infringed claim 1 as amended (AR 1).
• Overall, the patent was found to be valid and infringed. An injunction against each defendant was granted. Meril had argued that the court should exercise its discretion under Article 63(1) UPCA and refrain from ordering an injunction because it would be disproportionate due to overriding public heath interests. Edwards countered by arguing that even if the court could refrain from issuing an injunction based on proportionality, any balancing of interests would favour it. The Nordic-Baltic RD did note that Article 63(1) UPCA explicitly states that the court "may" issue an injunction and therefore it has the possibility of refraining from issuing one. This means that the court is expected to consider counterarguments presented by the defendant(s), which includes arguments based on proportionality. Despite this, the court was also clear that the main function of a patent is to give the proprietor a right to prevent others from using the invention during the term of protection (Article 25(a) UPCA). The possibility of applying for and being granted a compulsory licence should be taken into account but where the court finds a patent has been infringed, a request for an injunction should normally be granted.
• In this case, there was no reason to refrain from granting the injunction because Meril's public interest argument primarily focused on the public's need for its prosthetic valves and not the delivery device that was the subject of these proceedings. As such, the court granted an injunction and imposed an obligation to comply with it subject to a penalty of €10,000 for each violation. Importantly, the court held that the placing on the market of each individual infringing product should be considered a separate violation of the injunction.
• In addition to the injunction, the court also issued a declaration of infringement according to Article 64(2)(a) UPCA and ordered the recall and removal of the infringing products from the market and their destruction. The court also permitted Edwards' request for information relating to products that have been the subject of an infringing act since the patent was granted and awarded damages, with an interim award of €500,000.

• The Mannheim LD delivered two decisions concerning infringement actions brought by Fujifilm against three German subsidiaries of Kodak relating to German and UK designations of EP 174 and EP 616 concerning printing plates. The decisions had opposite outcomes.
• The Mannheim LD rendered two decisions in this case because there was only a short time period between the CJEU's decision in BSH v Electrolux being handed down and the oral hearing. This meant that the parties' right to be heard would have been impeded and therefore the court separated the proceedings concerning the UK designations so that the impact of BSH v Electrolux could be properly considered.
• On the same date as the LD panel separated the UK proceedings, it held that the German part of EP 174 was valid and infringed and an injunction was granted against Kodak covering Germany. However, the German designation of EP 616 was found invalid for lack of inventive step and therefore the infringement action was unsuccessful.
• The Mannheim LD later found that the UK designation of EP 174 was infringed by Kodak's activities in the UK, rejecting Kodak's invalidity defence. The court therefore granted an injunction against Kodak, restraining its behaviour in the UK by ordering Kodak, amongst other things, not to offer, place on the market, use or store the infringing product within the UK. Fujifilm was less successful in relation to the UK designation of EP 616, which was found to be invalid for lack of inventive step and the infringement action failed.
• The Mannheim LD's grant of an injunction relating to the UK designation of a European Patent marked the first time the UPC took the CJEU's reasoning in BSH v Electrolux to its full conclusion – injunctive relief based on an inter partes validity finding and establishing infringement. The Mannheim LD's decision affirmed the UPC's long-arm jurisdiction.
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This analysis is based on a machine translation of a decision not available in English.

• The Paris LD previously granted Tiru's ex parte evidence preservation and inspection request against Valinea and Maguin. Valinea and Maguin requested a review of the order, but this was rejected. After the measures were carried out, Tiru brought two infringement actions before the Paris LD against Valinea and Maguin.
• Maguin and Valinea lodged appeals against the evidence preservation and inspection order. They requested that the Court of Appeal revoke the order in its entirety, order restitution to them of all seized items, and order Tiru to pay the full amount deposited as security to reimburse them for their costs relating to the measures.
• Maguin and Valinea objected to the proceedings being ex parte, particularly arguing that there was a lack of urgency, an absence of risk of destruction of evidence, and a lack of candour from Tiru as it failed to disclose material facts that might have influenced the court when deciding to make an order without hearing the defendants.
• The Court of Appeal rejected the appeals. According to the UPCA, the RoP, and the Enforcement Directive, the Court of First Instance may exercise discretion when examining an application for preserving evidence (Rule 194 RoP). On appeal, it was the Court of Appeal's job to determine whether the limits of this discretionary power have been exceeded or whether the Court of First Instance had made an error of law.
• The Court of Appeal explained that when the Court of First Instance examines an application for preserving evidence, it exercises its discretion by taking into account the urgency of the action and whether, and to what extent, it wishes to hear the defendant (Rules 194.1(a) and 194.2(a) RoP). Based on the evidence presented by Tiru, the urgency of the requested measures without hearing the defendant had been made out as there was a need to carry out an inspection of the inside of the furnace before it was brought into operation.
• In considering the urgency requirement, the Court of Appeal found it necessary to distinguish between the urgency required in the context of preserving evidence (Rule 194.2(a) RoP) and in the assessment of provisional measures (Rule 209.2(b) RoP). When considering an application for provisional measures, the court has to have regard to any unreasonable delay in bringing the application. The Court of Appeal confirmed that there is no such requirement imposed by either the UPCA or RoP when assessing whether an application for preserving evidence should be granted.
• The court must also assess the risk of the destruction or unavailability of evidence when making a decision on an evidence preservation application. This must be done on the balance of probabilities (Rule 194.2(c) RoP) or on the demonstrable risk of the evidence being destoryed or otherwise being unavailable (Rule 197.1 RoP). The court's assessment must not be based on the certainty of the evidence's disappearance or its unavailability.
• Unlike provisional measures where the court must be satisfied with a sufficient degree of certainty that the patent is valid (Rule 211.2 RoP), there is no such requirement to assess validity when determining whether to grant an application for preserving evidence. The validity assessment is solely in the competence of the judge hearing the case on the merits or on provisional measures, except where the presumption of validity can be clearly called into question – for example, following a decision by the Opposition Division or Board of Appeal in parallel EPO proceedings, or in revocation proceedings before another court.
• As such, the Court of Appeal held that Tiru could not be faulted for not addressing the validity of its patent in anticipation of a hypothetical attack on the merits when submitting the request. Maguin and Valinea had not demonstrated that the patent had been challenged elsewhere, and nor did they provide any evidence of correspondence between the parties relating to the alleged invalidity of the patent. Accordingly, they did not establish that any risk relating to the validity of the patent could constitute a "material fact" that might have influenced the Paris LD's decision to make the order ex parte (Rule 192.3 RoP).
• Prior facts that Maguin and Valinea argued should have been brought to the court's attention by Tiru were not required. There was no requirement for the applicant to identify and disclose prior art, unless the prior art was likely to influence the ex parte decision. The judge was also not required to examine any prior art that may be submitted, unless it was likely to influence their decision.

• Aesculap brought an action for a preliminary injunction against Shanghai International for alleged infringement of its patent relating to a surgical torque-transmitting instrument and associated tool. The application was directed against the offer and sale of tools manufactured by another Shanghai entity, for which Shanghai International served as its EU authorised representative under the Medical Devices Regulation.
• Aesculap had issued the application ex parte but the judge-rapporteur decided that they wished to inform Shanghai International of the application in accordance with Rule 209.1(a) RoP. Aesculap did not object, so the court gave Shanghai International one month to respond. Shanghai International then stated that it did not wish to be represented at the hearing. The court noted that the absence of the defendant did not preclude a substantive decision on the preliminary injunction and did not require the issuance of a default judgment.
• The Düsseldorf LD granted the preliminary injunction.
• On infringement, the court established with sufficient certainty that Shanghai International's offer and distribution of the attacked embodiment constituted direct infringement. The court found Shanghai International's non-infringement argument unconvincing. It explained that if a defendant only makes general statements on the applicant's burden of proof and generally maintains that the applicant has not proven any infringing act, the applicant's submission will be deemed to be undisputed as per Rule 171.2 RoP. The court stated that even if Shanghai International's argument was correct – that there were not any specific concrete acts of direct infringement – it would still be liable as an intermediary within the meaning of Article 63(1) UPCA.
• The Düsseldorf LD held that validity was proved to the extent required for ordering provisional measures. It noted that the patent was granted without any opposition being lodged against it and that Shanghai International "did not make it appear overwhelmingly probable" that the patent was invalid.
• Lastly, the court considered the weighing of interest, where it rolled into its analysis the separate urgency requirement. Ultimately, it concluded that the balance of interests favoured grant of the preliminary injunction. The court was satisfied that Aesculap had acted with the requisite urgency. Aesculap received a copy of the alleged infringing embodiment on 27 January 2025 and filed its application for a preliminary injunction on 18 March 2025.
• The court also noted that the preliminary injunction appeared factually necessary in this case as there was no established distribution channel for the attacked tools and they would stand to be in direct competition with Aesculap's product. Not only did sales of the attacked tools stand to jeopardise Aesculap's tool sales, but the court thought the sales could also undermine Aesculap and its group company's market position with respect to motor systems for which the tools were used. As such, it was not reasonable for Aesculap to wait for a decision on the merits in the main proceedings.

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

• At first instance, Steros filed an application for provisional measures asserting claims against OTEC for infringement of its patent (EP 647) before the Hamburg LD. The application for preliminary measures was granted.
• OTEC filed an appeal against the order, requesting that the order be suspended pending the outcome of the appeal under Article 74(1) UPCA and Rule 223.2 RoP.
• The Court of Appeal rejected OTEC's request for suspensive effect. The Court of Appeal can grant an application for suspensive effective only if the circumstances of the case justify an exception to the principle that the appeal has no suspensive effect. Exceptional circumstances are assessed having regard to the relevant circumstances of the case and they must be submitted by the applicant. It must be examined whether, on the basis of these circumstances, the appellant's interest in maintaining the status quo until the decision on its appeal exceptionally outweighs the respondent's interest. The Court of Appeal stated that an example where suspensive effect may be granted is where the appealed order is manifestly erroneous.
• In this case, the Court of Appeal found that OTEC's application did not provide evidence of exceptional circumstances that would justify the appeal having suspensive effect.
• OTEC claimed that the Hamburg LD made an erroneous finding of infringement and validity, a wrong assumption of objective necessity, an incorrect balance of interests and an incorrect decision on security. The Court of Appeal concluded that OTEC had failed to demonstrate that the Hamburg LD's findings constituted manifest errors: that is, factual findings or legal considerations that are clearly untenable even on that basis of a summary assessment. Whether the order was based on errors would be a matter for the Court of Appeal to decide in the main appeal proceedings. Accordingly, the court held that OTEC's interests did not outweigh Steros' interests or the principles of due process.