2023 UPC November

IPPT20231128, UPC CFI, LD Hamburg, Avago v Tesla

The start of time limit of two months for responding to the Statement of Defence which includes a Counterclaim for revocation (Rule 29a RoP) is to be set on the date of the conclusion of the R. 262A proceedings, i.e. 8 November 2023. Opposing party to be heard on synchronizing time limit for replying to the nullity counterclaim with the time limit for replying to the Statement of Defence (Rule 264 RoP).

IPPT20231127, UPC CFI, LD Munich, Panasonic v Xiaomi

Preliminary order : Service of Statement of claim by alternative method (Rule 275 RoP); Extension of time to file Statement of defence (Rule 9 RoP). The Court is of the opinion that the most efficient and economically sensible course of action in the present case would be for the present counsel for Defendants 3,4,5,6,9,10 to accept service for Defendants 1, 2, 7, 8 on Defendant 3 in the context of the motion under (Rule 275.2 RoP). As a concession, the time limit for responding to the action could - subject to a statement by the plaintiff - be set uniformly until 31 January 2024. The application for an extension of time for defendants 3,4,5,6,9,10 would then be interpreted as also including an application for an extension of time for defendants 1, 2, 7,8.

IPPT20231122, UPC CFI, LD Düsseldorf, myStromer v Revolt Zycling

Ordered before the conclusion of the written procedure to hear both the infringement action and the counterclaim for a declaration of invalidity and to request the President of the Court of First Instance to assign a technically qualified judge (article 33(3)(a) UPCA, Rule 37 RoP). The joint hearing of infringement and revocation counterclaims can be useful for reasons of efficiency alone. It is also advantageous in terms of content, as it allows a decision to be made on both the legal status and the question of infringement on the basis of a uniform interpretation by the same panel in the same composition. This applies all the more if the complexity of the technology in dispute is rather moderate in the known spectrum of patent disputes and the number of validity attacks is also manageable.

IPPT20231120, UPC CFI, CD Munich, Astellas v Healios

Revocation action currently not stayed because of rapid decision expected from the EPO, but continued at least until the interim conference which is to be held on 14 March 2024 (article 33(10) UPCA, Rule 295(a) RoP)). The Court finds that the Claimant has credibly established that it has a legitimate interest in pursuing this revocation action with the aim of obtaining (at least some degree of) commercial certainty in view of the Patent. Rapid decision expected from the EPO requires that there should be a concrete expectation (i.e. a known date in time) for a decision which date should be in the near future such that it is clearly expected to be delivered before an expected decision by the UPC. Decision not limited to final decisions of the EPO.

IPPT20231117, UPC CFI, CD Munich, Astellas v Healios

Inter parties restricted access to confidential commercial information (Rule 262A RoP). Unrestricted access to specific document containing commercially sensitive information not necessary to understand Claimant’s legal position. Access restricted to specific natural persons, at least natural party form each party (not limited to employees) and the respective lawyers, or other representatives of those parties to the legal proceedings. Public access to confidential commercial information restricted (Rule 262 RoP). The Court grants request to keep the information in the Confidential Annex confidential for third parties, provided a redacted version thereof is submitted (Rule 262(2) RoP).

IPPT20231117, UPC CFI, LD Hamburg, Fives v Reel

Article 32(a) UPCA confers competence on the UPC to determine damages only after a prior action for patent infringement has been brought before a chamber of the UPC. The UPC does not have competence for actions for the determination of damages on the basis of patent infringement proceedings that have become final before a national court. Preliminary objection granted (Rule 19(1)(a) RoP)

IPPT20231114, UPC CFI, LD Paris, C-Kore Systems v Novawell
Ex parte measure granted to preserve evidence, detailed description, physicial seizure of product and technical and promotional documentation an a written report by expert appointed by the Court (Article 58 UPCA, Article 60 UPCA, Rule 196 RoP, Rule 197 RoP)

IPPT20231113, UPC CFI, CD Paris, Meril Italy v Edwards Lifesciences

Preliminary objection concerning the competence of the Central Division because of a pending action before the Munich Local Division rejected: Meril Italia is not the same party a Meril India or Meril Germany (article 33(4)UPCA, Rule 20 RoP). Preliminary requests to postpone the hearing on Preliminary objection and to exclude exhibits rejected (Rule 20 RoP).

IPPT20231106, UPC CoA, Ocado
Appeal from the order to grant a third party access to documents (Rule 262 RoP) shall have suspensive effect, to ensure that there is time to adjudicate Ocado’s appeal on the merits from the Order to grant a third party access to documents, which will be enforceable on 7 November 2023 and would make the appeal devoid of purpose. (Article 74 UPCA, Rule 223 RoP, Rule 262 RoP) Application ex officio handled as having extreme urgency by the standing judge (Rule 223(4) RoP).

IPPT20231103, UPC CFI, LD Munich, Amgen v Sanofi-Aventis

Change of the language of the proceedings from German to English, the language of the patent, subject to the agreement of both parties and the other members of the panel (Rule 322 RoP, article 49 UPCA).

IPPT20231103, UPC CFI, LD Hamburg, Avago v Tesla 

Confidentiality order and restriction of access (Rule 262A RoP, Article  58 UPCA). Prima facie evidence of trade secrets. The existence of a trade secret does not have to be established to the court's satisfaction, but it is sufficient if this is predominantly probable.