2026 UPC June

IPPT20260629, President UPC CoA, Silimed v Health & Aesthetics
Review rejected of Registrar’s rejection of application to remove an unauthorised opt-out (Article 83(3) UPCA, R. 5A RoP). Based on the submissions of the Applicant, it therefore, cannot be established that Polytech on 30 March 2023, when it filed the application to opt-out EP’193 from the exclusive competence of the Unified Patent Court under Art. 83(3) UPCA, was not entitled to be registered as proprietor of the patent in the national registers concerned at that time and, thus, must be considered to have been authorised to opt-out EP’193 from the exclusive competence of the Unified Patent Court pursuant to Art. 83(3) UPCA. An application to remove an unauthorised application to opt out pursuant to R. 5A RoP must a) either demonstrate that the person who filed the application to opt out, at the time of filing the application, was not the person shown in each national patent register for which the European patent was validated as the person entitled to be registered as the proprietor of the European patent, but that it was the applicant of the application to remove the unauthorised application to opt out, see R. 8.5(c) RoP, or b) if the persons mentioned under a) are identical, demonstrate that at the time of filing the application to opt out, the person shown in each national patent register for which the patent was validated as the person entitled to be registered as the proprietor of the European patent, under the law of each Member State for which the European patent was validated, was not entitled to be registered as the proprietor of the patent, but that it was the applicant of the application to remove the unauthorised application to opt out, see R. 8.5(a) RoP.

IPPT20260622, UPC CFI, LD Dusseldorf, Evac v Shanghai VacDrain

Preliminary objection on international jurisdiction dismissed – Patent infringed, permanent injunction granted. (Article 25 UPCA , Article 26 UPCA , Article 63 UPCA, Rule 19.1(a) RoP) Jurisdiction and competence of court (Article 4(1) , Article 71b(1) Brussels Regulation) Jurisdiction arises since the defendant has its registered office in a UPC member state (Hamburg, Germany). No objection on jurisdiction raised by Chinese defendant. Direct Infringement (Article 25 UPCA) Ongoing acts - A normative and thus evaluative assessment is required when determining whether acts of infringement are “ongoing”, one must not adopt an overly formalistic approach that would run counter to the objectives of the UPCA. A continuing act may therefore be presumed if the infringer continues his infringing conduct even though he could have ceased it in view of the entry into force of the UPCA. Contrary to the plaintiff’s view, the existence of a continuing act […] cannot be established solely on the grounds that the defendants neither issued a cease-and-desist declaration nor otherwise eliminated the risk of further infringement. Managing director (Defendant 3) personally liable as accomplice co infringer - does not merely hold a corporate position (Article 64 UPCA , Article 25 UPCA). Defendant personally signed the invoices in each instance during the test purchases conducted in China. Even if these test purchases in China do not in and of themselves constitute an infringement of the patent at issue, this conduct nevertheless demonstrates that his position extends beyond that of a typical managing director or director. Around the time of the test purchase —he was, as a director and majority shareholder, actively involved in the operational business and the distribution of the contested embodiment by Defendant No. 1. No infringement by German distributor (Defendant 2) – No evidence to suggest the defendant could also offer or distribute the contested embodiments. Defendant was entered in the commercial register on after the test purchase , and therefore did not yet exist at the time of the test purchase. It cannot be inferred from an overlap in the ownership structure that an act of infringement by Defendant 2 is imminent , insofar as argued that Defendant 2 is entirely owned by the managing director. The plaintiff does not even claim that Defendant No. 2 is, from a legal standpoint, the legal successor to Vacdrain GmbH. It is undisputed that Defendant No. 2 and Vacdrain GmbH are two separate companies with different names, different managing directors, different addresses, and different shareholder structures. Insofar as the plaintiff nevertheless attempts to infer liability on the part of Defendant 2 as the de facto legal successor to Vacdrain GmbH, the plaintiff—even if some circumstantial evidence may support this—has failed to present sufficiently concrete facts on the basis of which such legal succession could be established with the certainty required for a judgment. No Exhaustion – maintenance and restoration of ability (Article 29 UPCA , Article 26 UPCA). The replacement of the vacuum buffer medium constitutes a “new manufacture” of the wastewater system according to the invention, since the technical effects of the invention are reflected precisely in the replaced vacuum buffer medium. If a part of a patent-protected product is exchanged or replaced, it must be determined whether this exchange or replacement constitutes permissible use in accordance with the intended purpose or whether it amounts to an impermissible new manufacture of the patent-protected product. The decisive factor here is whether the exchange or replacement preserves the identity of the specific product already placed on the market or whether a new product embodying the invention is thereby created. No basis for statute of limitations in connection with the injunction sought (Article 72 UPCA, Article 24(2) , (3) UPCA) Pursuant to Art. 72 UPCA , notwithstanding Article 24(2) and (3) of the UPCA, actions relating to all forms of financial compensation must be brought no later than five years after the claimant became aware of, or reasonably should have become aware of, the last event giving rise to the action. No implied consent by plaintiff (Article 25 UPCA) Based on the arguments presented by the defendants, it cannot be established that at the time of the delivery of the exhaust valves to Evac Germany GmbH referred to by the defendants, the plaintiff was aware not only of the delivery in question but also of the fact that the exhaust valves utilized the technical teachings of the patent at issue.

IPPT20260622, UPC CoA, Valeo v Robert Bosch
Paris Central Division has competence to hear infringement action related to the same alleged infringement against defendants having a commercial relationship (Article 33(1) UPCA). Preliminary objection only binding on the parties thereto and not on all the parties involved in the proceedings (R. 19 RoP). Central Division has (alternative) competence in case defendant’s’ domicile or place of business (Article 33(1) UPCA) is outside the territory of the UPCA Contracting Member States (which competence does not constitute an exception to that of a local or regional division); or is within a UPCA Contracting Member State which has no local or regional division. In case of multiple defendants the Central Division competence based on a defendant’s domicile or place of business also, subject to the requirements of Article 33(1)(b), applies to the other defendants (irrespective of the principle of proximity).

IPPT20260622, UPC CoA, Robert Bosch v Valeo
Appeal of dismissal of preliminary objection rejected (R. 19 RoP). Competence regarding multiple defendants (Article 33(1)(b) UPCA). “Commercial relationship” requires the existence of relations between the defendants concerning commercial activities relating to the product or range of products alleged to have been infringed, such as research and development, manufacture, sale and distribution of those products. Belonging to the same group of companies may constitute such a commercial link [...]. The commercial link may be direct or indirect. It may exist through other companies within the same group of companies or even through third-party intermediaries, provided that all the defendants are pursuing the same objective and that the activities in question relate to the product or range of products alleged to be infringed. In this respect, it is not necessary, in order to establish the existence of a commercial link, for the defendants to be part of the same supply chain or for the anchor defendant to be involved in the various supply chains. “The same alleged infringement”: to satisfy this condition, the acts alleged to constitute infringement must relate to the same patent and to the same product or the same range of products, provided that, on the basis of a summary assessment at the stage of examining a preliminary objection, the products at issue appear to be substantially the same, irrespective of their trade name and without it being necessary to establish that these products are marketed through the same supply and distribution channels..

IPPT20260618, UPC CoA, Occlutech v. Lepu
Appeal successful, provisional measures granted (Article 62 UPCA, R. 242 RoP). Absence of party Lepu from the hearing (R. 116 RoP, R. 240 RoP). The Court of Appeal […] will treat Lepu as relying only on their written case and will issue the present order on that basis. New facts and evidence disregarded (Article 73(4) UPCA, R. 222.2 RoP). Failure to justify that the new submission could not reasonably have been made in the first instance proceedings. The fact that Mr Wang’s thesis concerns a device that, according to Lepu, is a precursor to the Attacked Embodiments and has been developed by a company that Lepu acquired in 2008, underscores that Lepu could and should have submitted the facts and evidence in the first-instance proceedings, and also within the – relatively short – time periods for preparing a defence in provisional measures proceedings. In addition, the new submissions raise questions concerning, inter alia, the accuracy of the translation, the disclosure of a number of the patent claim features and the enablement of the teaching disclosed by Wang. The late submission therefore prejudices Occlutech in its defence against the new argument. Claim construction (Article 69 EPC). Claim interpretation not depending solely on the strict, literal meaning of the wording used, but using the description and the drawings as explanatory aids for the interpretation of the patent claim and not only to resolve any ambiguities in the patent claim.  The interpretation that claim 1 requires the braiding to consist of multiple wires or threads, i.e. more than one wire or thread follows from i) the wording of the claim, which uses the plural (“wires or threads”) in claim elements 1.1 and 1.2.1,  ii) the description, which consistently teaches the use of wires or threads, and  iii) the fact that a braiding consisting of a single wire or thread has a number of disadvantages, which both parties accepted as common general knowledge of the person skilled in the art. Functional claim interpretation of claim elements 1.5.1 and 1.5.2 specifying that the completely closed proximal wall is a “continuous surface” and “forms the proximal end” of the occlusion device. These claim elements must be interpreted in the light of the functions of the proximal wall in the context of the claimed invention. As described above in paragraphs 44 and 45, these functions are: those of supporting endothelialisation and of reducing the risk of embolisation. This means that the person skilled in the art will understand that, for the question of whether claim elements 1.5.1 and 1.5.2. are realised, not any recess or protrusion at the proximal end of the device is relevant, but only a recess or protrusion that has a substantial impact on endothelialisation or embolisation. This interpretation is confirmed by the type of protrusions in prior art devices which the patent description presents as problematic. Infringement (Article 25 UPCA). In the Statement of response, Lepu conceded that their assertion in the first instance proceedings that, in the Attacked Embodiments, the wire of which the braiding is made is laid in loops in the hub is incorrect. They acknowledged that the wire from which the braiding of the Attacked Embodiments is made is shortened to achieve the required length. In view thereof, the Court of Appeal understands that it is no longer in dispute that the wire is cut into pieces during the manufacturing process of the device, as Occlutech submits. It follows that the Attacked Embodiments comply with claim element 1.1 (“braiding of thin wires or threads”). 

IPPT20260612, UPC CFI, LD The Hague, GSK v. Moderna

Preparation for oral hearing at interim conference (Rule 105.5 RoP , Rule 112 RoP) by deciding on mutual objections of parties as much as possible, and addressing outstanding applications, after having (further) heard the parties.. Case discussed based on all topics suggested beforehand by the Court and parties. Judge rapporteur guidance/preliminary views on the perceived crucial issues regarding claim construction, infringement and validity. Discussion on whether the counterclaim for revocation could be considered conditional on the establishment of infringement.
 

IPPT20260602, UPC CoA, Kodak v Fujifilm 
Infringement orders for UK and Germany set aside. No infringement in Germany because private prior use right of Kodak Graphic (Article 28 UPCA). Alleged infringement by Kodak Graphic in UK unsubstantiated (Article 25 UPCA). Fujifilm accepts that under UK law the importer is the party who has legal and beneficial interest in the goods. Under German case law ‘manufacture’ […] does not mean processing or transforming the material oneself: a person who has a material processed into a new item under a contract for work may be regarded as the manufacturer  Claim construction (Article 69 EPC). There is no general rule that the skilled person would always and automatically take into account fluctuations which are due to the manufacturing process and the measurement method and in doing so would automatically add deviations to the – as such precise – numerical value in a claim feature. This may be a result of claim interpretation but is not inherent to the use of a numerical value in a claim. Front Loaded Proceedings (Rule 29(c) RoP, R. 263 RoP). It is not contrary to the lodging of a Rejoinder to the Reply to the Statement of defence. or the front loaded system of the RoP if a party submits additional evidence of an already stated fact or submitted argument for which other evidence had already been submitted, but which was disputed by the other party. International Jurisdiction UPC. UPC’s jurisdiction is not confined to its own territory (Article 34 UPCA). UPCA is expressly not limited to European patents insofar as validated for the UPC territory only. As such, European patents validated in territories outside the UPC territory is ‘matter governed by the UPCA’. Art. 24(3) UPCA specifically leaves open the possibility that there is a need for the UPCA to apply national law, including that of non-contracting States (Article 24(3) UPCA) The use of ‘in particular’ makes clear that the areas of application of such foreign law is not limited to the matters referred to in the articles mentioned.  No forum non-convenience (Article 4 Br I bis) Where a court has jurisdiction under Article 4 Br I bis because the defendant is domiciled in its territory, […], the Regulation precludes that court from declining jurisdiction on the ground that a court of a non-Member State would be a more appropriate forum for the trial of the action, even if the jurisdiction of no other Member State is in issue, or the proceedings have no connecting factors to any other Member State. Accepting jurisdiction in infringement action vis-à-vis a defendant domiciled in the UPC’s territory based on Art. 4 Br I bis as such cannot be considered contrary to the TRIPS Agreement. Accepting jurisdiction […] must be distinguished from how this jurisdiction is subsequently exercised by the Court in view of all the circumstances of the case. Exercising International Jurisdiction. A court having jurisdiction to hear an alleged infringement of a patent validated outside its territory, is required to apply the law applicable to that patent and must also apply international law principles such as comity. Where the Court has jurisdiction to decide on the alleged infringement and remedies, based on a non-UPC designation of a European patent (EP), and where the defendant has as a defence – asserted that the EP relied on is invalid (Article 24(4) Brussels I Bis, Article 22(4) Lugano Convention) then: [...] The Court of Appeal considers the following approach regarding actions based on EU/LC European patents and/or non-EU/LC European patents to be in line with BSH v Electrolux and international principles of law, including comity, for the following situations (I, II and III respectively):)  I – when a revocation action lodged with the Court with respect to (a) EU/LC EP(s) and/or non-EU/LC EP(s): the Court shall declare that it lacks jurisdiction to decide the action. II- in an infringement action which is also based on (a) EU/LC EP(s) and/or non-EU/LC EP(s), and the patent in force in the UPC territory is considered invalid, but the attacked embodiment or process would infringe if it were valid [...] III - in an infringement action which is also based on (a) EU/LC EP(s) and/or non-EU/LC EP(s), and the patent in force in the UPC territory is considered valid and infringed in the UPC territory[...].  Jurisdiction of the UPCA under Art. 32.1(a) UPCA to hear actions for infringement extends to allegations of joint tortfeasorship (Article 32.1(a) UPCA, Article 63 UPCA ,Article 25 UPCA). An "infringer" within the meaning of Art. 63 UPCA in conjunction with Art. 25 UPCA is also a person who does not personally carry out the acts referred to in Art. 25 UPCA but to whom the acts of a third party are attributable because he is an accessory