2023 UPC June

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IPPT20230721, UPC CFI, LD Milan, Oerlikon v Bhagat
Service of the Statement of claim (Rule 6 RoP, Rule 271 RoP) without sending a copy of the documents attached to the claimant, as in any case listed on pages 41 et seq. of the Statement of claim and in any case summarily described in their content in the body of the same document.


IPPT20230705, UPC CFI, CD Paris, Bitzer v Carrier

Rule 16(3) RoP correction of deficiencies in the Statement of Claim is not an urgent action as mentioned in Rule 345(5) RoP that requires a standing judge. The abovementioned R. 16-5 RoP is not applicable in the present situation, as the claimant did not fail to correct the deficiencies within 14 days of service of the Registry’s notification but was only asked to amend the statement of claim according to the relevant correction provided in a separate document. The claimant is at the time of the present order allowed to lodge an amended statement of claim pursuant to R. 16-3 RoP.


IPPT20230630, UPC CFI, LD Düsseldorf, myStromer v Revolt Zycling

Unsuccessful application for rectification under Rule 353 of order so as to include Austria in the  countries covered by provisional injunction. Application admissible under Rule 353. Obiter dictum: Since Rule 353 only allows for purely formal corrections without an examination of the substance of the matter, it is not necessary for the panel to decide in the same composition as when the order was issued. No obvious inaccuracy. Obvious inaccuracies includes all incorrect or incomplete statements of what the court actually intended in the order or decision. The declaration of the judicial intention in the decision or order must deviate from the intention present when the decision was made. Order for provision measures was issued on the basis of the application where in the auxiliary request Austria was not explicitly mentioned. The fact that the more general main request, seeks the grant of an interim injunction in respect of all member states of the Unified Patent Court in which the patent for invalidity is in force does not give rise to a different assessment, as the applicant only deals with Germany, the Netherlands, France and Italy in connection with the justification of an act of infringement. Conflict with the territorial scope provided in article 34 UPC Agreement does not justify a rectification under Rule 353.


IPPT20230629, UPC CFI, CD Munich, Sanofi-Aventis v Amgen
Deemed day of service on the Defendant ((Rule 271 and Rule 49 Rules of Procedure). Application to file exhibits to statement of claim granted. In view of the access to the case that Defendant obtained on today’s date and the exhibits becoming available to the Defendant also today, the Court would like to clarify that the Statement of revocation is deemed to be served on the Defendant today, i.e. on 29 June 2023.


IPPT20230626, UPC CFI, LD Milan, Ocado v Autostore

Withdrawal of action prior to final decision because of settlement (Rule 265 RoP). Ocado reimbursed the amount of EUR 37,800, equal to 60% of the Court fees paid by it in these proceedings (Rule 370(9) RoP).


IPPT20230626, UPC CFI, LD Milan, Ocado v Autostore

Service of the Statement of claim without sending a copy of the documents (approximately 2.000 pages) attached to the claimant, as in any case listed on pages 47 et seq. of the Statement of claim and in any case summarily described in their content in the body of the same document. (Rule 6 RoP)


IPPT20230622, UPC CFI, LD Düsseldorf, myStromer v Revolt Zycling

Ex parte provisional injunction regarding Germany, the Netherlands, France and/or Italy and seizure of goods suspected of infringement.(article 62 and 29 UPC Agreement, Rules 206207209211 and 212 Rules of Procedure). Direct and literal infringement of the patent by the contested embodiment not substantially disputed in the protective letter. No exhaustion because respondent is not licensed to create from components supplied by Fairy Bike a combination falling within the scope of protection of the patent. Urgency of the action due to the already running leading European trade fair "Euro Bike 2023" and no earlier knowledge of detailed technical design of contested embodiment evident. Only provisional award of court costs, since the applicant did not explain in detail the amount of its costs quantified at EUR 16.000. Provisional measures granted without hearing the defendant because of likelihood of irreparable harm. It is obvious that the exhibition of the contested embodiment at this trade fair can lead to a hardly reversible loss of sales or market shares of the applicant. The products of both parties are substitutable, direct competitors.


IPPT20230616, UPC CFI, CD Paris, Astellas v Healios

Action referred to Central Division, Munich Section. The first classification mentioned by the patent at issue is C 12N 5/079 (Rule 17 RoP).

IPPT20230613, UPC CFI, LD Milan, Oerlikon v Himson II
Ex parte order to preserve evidence at trade fair (Article 60 UPCA, Rule 192 RoP). Extreme urgency exists considering that the international trade fair where the offending conduct is taking place started on 8.6.2023 and ends, tomorrow, on 14 June 2023. The prerequisites of Articles 197(1) RoP and 60(5) UPCA for the ex parte granting of the measure are met, since (a) time constraints do not allow the parties to be convened before the end of the trade fair tomorrow; (b) there is a risk that the evidence will no longer be accessible to the claimant once the exhibition is over, since the defendant is based abroad and the documents indicated are easy to conceal and/or destroy. Payment of fees (Rule 192(5) RoP, Rule 371(1) RoP: The Tribunal notes that pursuant to Section 371(3) RoP, in cases of urgency, when advance payment is not possible, the applicant's counsel must pay the fixed contribution within the time limit set by the Tribunal: in light of this limitation, the applicant must be ordered to pay this contribution by 15 June 2023.

IPPT20230613, UPC CFI, LD Milan, Oerlikon v Himson
No extreme urgency requiring standing judge to decide on application to preserve evidence (Rule 194(4) RoP, Rule 345 RoP). The claimant argues that the order for preserving evidence is extremely urgent due to the end of the fair in Milan, which will end on the 14th of June. The application has been lodged on the 12th afternoon. At this stage, it is still possible for the presiding judge in the local division of Milan to make an urgent decision before the end of the fair.