2024 UPC October

IPPT20241031, UPC CFI, LD Düsseldorf, Valeo Electrification v Magna
Provisional injunction granted for direct and literal infringement with carveout for BMW supplies (R. 211 RoP, Article 62 UPCA, Article 25 UPCA, Article 69 EPC). It is more likely than not that the patent in suit is infringed by the offer and distribution of the challenged embodiments in the territory of the Contracting Member States Germany and France (R. 211.2 RoP). Strong rebuttable presumption that the registered patent proprietor is the material patent proprietor entitled to bring actions (Article 47(1) UPCA, Article 138(1)(e) EPC). In PI proceedings – in which only a “sufficient degree of certainty that the applicant is entitled to commence proceedings pursuant to article 47 UPCA” is required (R. 211(2) RoP) – this presumption can only be rebutted if the title is manifestly erroneous. 

IPPT20241031, UPC CFI, LD Düsseldorf, Sodastream v Aarke
Claim construction (Article 69 EPC). Skilled person will not stop at the literal meaning of a feature but will determine the meaning of the word ”flask“ in the context of the patent claim as a whole. In doing so, the skilled person will turn to the technical function of the flask given by the individual feature and in the context of the other features. The description and the drawings may show that the patent specification defines terms independently and in this respect may represent a patent´s own lexicon.
The claim must not be limited to the scope of preferred embodiments. The scope of a claim extends to subject-matter that the skilled person understands as the patentee's claim after interpretation using the description and drawings. A claim interpretation which is supported by the description and drawings as a whole is generally not limited by a drawing showing only a specific shape of a component. The Court does not find the fact that the claim is drafted in the so-called two-part form relevant. Apart from the fact that the Court does not rely on the grant procedure as interpretative aid because the procedure is not mentioned in Art. 69 EPC, the Defendant´s argument also fails on the merits. Whether or not the patentee chooses to claim the invention in a two-part form, this does not have any implication for the interpretation of the claim with respect to the scope of protection regarding infringement issues. As the claim must be interpreted as a whole, generally every feature – no matter where in the claim structure it appears – has to be taken into account. No additional room for a  Gillette defence understood in the way the Defendant presented it. Prior art is not mentioned in Article 69(1) EPC. The limitation to the description and the drawings as interpretation material serves the purpose of legal certainty, since the scope of protection can be conclusively determined from the patent itself. If prior art is discussed in the description of the patent in suit, the relevant considerations must be taken into account. If the patent in suit distinguishes itself from the prior art in a particular way, an interpretation that negates that distinction must be avoided. In the case at hand, as it can be seen above, in interpreting the claim, the Court took into account the discussed distinction from the prior art in detail. No publication of decision (Article 80 UPCA). The Claimant´s interests are already satisfied by the effects of the other orders made by this decision on the merits. The right of publication includes a further element of punishment. Publication should therefore only be granted if the protection of the Claimant is not provided effectively and sufficiently ensured by the other measures ordered. This is not the case here. Entitlement to damages on the merits (Article 68(1) UPCA). The Defendant should have been aware, through the exercise of due diligence, that its actions infringed the patent in suit. Provisional damages covering the expected costs of the proceedings for the award of damages and compensation of EUR 250.000 (R. 119 RoP.) 

IPPT20241030, UPC CFI, LD Düsseldorf, Ortovox v Mammut
Request rejected to allow further written submissions regarding new product version (‘Barryvox S’) (R. 36 RoP). Time available until the date of the oral hearing (26 November 2024) clearly insufficient for (i) further legal classification and treatment thereof, as well as (ii) a reasonable period of time for the defendants response and (iii) sufficient time to prepare for the hearing.

IPPT20241030, UPC CFI, LD Düsseldorf, Fujifilm v Kodak
Further written pleading rejected (R. 36 RoP). Would lead to a delay in the proceedings. In view of the oral hearing, which is already scheduled for December, such a delay would be unacceptable to both the Court and the Defendants. The Claimant’s right to be heard is not unduly restricted by the rejection. New factual allegations in the Rejoinder may be rejected (R. 9(2) RoP). If accepted the Claimant will be given the opportunity to respond to the Defendants’ new allegations in the Rejoinder during the interim procedure, but at the latest during the oral hearing. 

IPPT20241029, UPC CFI, RD Nordic-Baltic, Texport v Sioen
Preliminary objection dismissed (R. 19 RoP). Parallel jurisdiction during the transitional period also includes actions for a declaration of non-infringement, although such actions are not explicitly mentioned in Article 83.1 UPCA. An action for a declaration of non-infringement is, after all, the mirror of an action for infringement (cf. e.g. ECJ, 6 December 1994, C-406/92, ECLI:EU:C:1994:400, Tatry). The Court finds that there are not sufficient reasons for staying the UPC infringement proceedings because of Belgian proceedings for a declaration of non-infringement and fot revocation (Article 30 Brussels I recast). The fact that a final decision by the UPC may include remedies also covering Belgium does not lead to a different conclusion.

IPPT20241029, UPC CFI, LD Düsseldorf, Dolby v HP
Suspension of the proceedings upon joint request of the parties (R. 295 RoP). The oral proceedings scheduled for 17 June 2025 (and, if necessary, 18 June 2025) shall be cancelled. 

IPPT20241029, UPC CoA, Belkin v Philips
Manifest error of law that managing directors of a company are intermediaries within the meaning of Art. 63(1) UPCA solely on the basis of their function as managing directors. A managing director of a patent infringing company represents that company. This company cannot therefore be a ‘third party’ within the meaning of Art. 63 UPCA and Art. 11 of the Directive 2004/48. Suspensive effect of the appeal regarding the enforcement against de defendant’s managing directors (Article 74 UPCA, R. 223.1 RoP). Suspensive effect may be considered in particular if the order against which the appeal is directed is manifestly erroneous or if the enforcement of the contested decision would render the appeal largely redundant. A manifest violation of law exists if the factual findings and legal considerations prove to be unsustainable in the summary examination to be carried out or in case of violation of fundamental procedural rights such as the right to a fair hearing.  A request for suspensive effect must by itself, enable the Court of Appeal to decide, if necessary without further information  (R. 223.1 RoP). References to written submissions and documents in the first-instance case file are admissible, provided that these are identified in a sufficiently specific manner. Making a decisions or order subject to providing security (R. 352 RoP) requires that the security is ordered at the time of decision or order.
 

IPPT20231025, UPC CFI, LD Brussels, Cretes v Hyler
No bifurcation: Local Division proceeds with both the action for infringement and the counterclaim for revocation (Article 33(3) UPCA, Rule 37 RoP). Such joint treatment allows parties to align their reasoning on the respective claims. Furthermore, it also points to a uniform interpretation of the relevant patents by the same panel which enhances legal certainty. Finally, it is indicated that, in the absence of exceptional circumstances, the parties requested the Judge-Rapporteur to hear main claim and counterclaim together.

IPPT20241024, UPC CFI, LD Munich, Tiroler Rohre v SSAB
Application for interim measures withdrawn after oral hearing (Article 69 UPCA, R. 265 RoP). No legitimate interest in a ruling on the interim measures. Applicant to bear the legal costs of the defendant.

IPPT20241024, UPC CFI, LD Hamburg, 10x Genomics v Vizgen
Confidentiality club arrangement in line with Outside Attorneys’ Eyes Only agreement before US court (R. 262A RoP)
 

IPPT20241024, UPC CFI, CD Paris, Qualcomm
No reimbursement of court fees following interlocutory rectification by EPO of contested decision after Court order that there was no reason for full or partial reimbursement of the fee for the action (R. 370 RoP, R. 91 RoP, R. 333 RoP, R. 220 RoP). Even if it is foreseen by R. 370.11 RoP that an application may also be filed at a later stage, it remains in the present case that the Court of First Instance cannot review its previous order on the same subject-matter and decide in a different way, considering – should it be a case management order – that the decision was taken by a single judge (without possible panel review) and the Order can be appealed.

IPPT20241022, UPC CFI, President, Visibly v Easee
Consequences of change of language of the proceedings by agreement from German into English (the language of the patent) (R. 324 RoP). It results from the above that, for reasons of both fairness and convenience, the Claimant should provide an English version of the Statement of Claim along with the four abovementioned exhibits on its costs. With regard to the circumstances mentioned above, a time limit of 10 (ten) days as from the date of the present Order shall be given for this purpose.

IPPT20241022, UPC CFI LD Hamburg, 10x Genomics v Vizgen
Panel review of order to produce documents which are the subject of parallel US proceedings (R. 333 RoP, Article 59 UPCA, R. 190 RoP). Defence of abuse of rights can be considered by the UPC. Production of emails allegedly showing that the first claimant had acted, including the acquisition of […], with the aim of securing a dominant position in the SST market, and that the second claimant was aware that the […] licence or its transfer to the first claimant would harm the defendant. Production of documents regarding specific instructions by first claimant of its employees to destabilise the market. Price-related abuse of a dominant position is not relevant either to the question of patent infringement or to any secondary claims arising from such infringement. The issue of an alleged restriction of competition resulting from a company’s pricing policy has no connection to a patent dispute. Order is proportionate, documents are covered by confidentiality regime (R. 262A RoP) and disclosure is necessary as defendant has no other means to obtain knowledge of the documents because of US protective order and lack of consent for cross-use. Defendant not required to conduct evidence gathering proceedings in the USA in lieu of its applications for evidence production under Article 59 UPCA

IPPT20241022, UPC CFI, CD Munich, Sanofi-Aventis v Amgen
Access granted to (only) the written pleadings and evidence lodged and recorder in the register. Case has ended by way of a decision by the Court (R. 262(1) RoP).

IPPT20241021, UPC CoA, SharkNinja v Dyson
New submission disregarded; lack of relevance for the decision on the appeal (R. 222(2) RoP). Contrary to SharkNinja's view, submissions by the parties in other proceedings that contradict the submissions in the present proceedings do not mean that the submissions in the present proceedings must be regarded as contradictory and irrelevant. The submissions relate, incidentally, to a different patent, albeit with identical claim wording.

IPPT20241020, UPC CFI, LD Mannheim, DISH v AYLO - I
A reasoned request for information under R. 191 RoP must sufficiently specify which information is requested and for what reasons. The requesting party may assert a fact that it believes to be true without fear of being accused of failing to furnish the court with truthful facts simply because the opposing party believes this to be false. It is the task of the court to assess whether a disputed fact is true by evaluating the mutual factual submissions and the evidence offered at the appropriate time. An application for transmission of information cannot be granted until the other party has been given an opportunity to respond to how the applicant intends to rely on the requested information. The Court must weigh up the interests of the parties and ensure that a requested order does not amount to unauthorized spying.

IPPT20241020, UPC CFI, LD Mannheim, DISH v AYLO - II
Order to produce a document  (R. 190 RoP) can only be granted if it has been established that this would be used to prove a disputed fact. If it remains unknown whether the opposing side will dispute the fact which the evidence aims to prove, no order can be given.

IPPT20241020, UPC CFI, LD Mannheim, DISH v AYLO - III
Before establishing infringement, an order to provide information (Art. 67 UPCA, R. 191(1) RoP) that is used to identify further infringers in the distribution and supply chain or to determine and calculate the damage caused by the patent infringement can only be granted under special circumstances.

IPPT20241018, UPC CFI, LD Dusseldorf, Bekaert v Siltronic
Order for inspection and preservation of evidence granted  (Article 60 UPCA , Rule. 192 , 199 RoP) . Applicant has credibly demonstrated that the patent may be infringed by the respondent (Art. 60 (1) UPCA). It is possible that the first respondent uses saw wires suspected of infringing the patent application in its production and that the second respondent stores said saw wires. The applicant found a wire from Sunnywell at a disposal site used by the first respondent.  The supplier, did not deny the use of the saw wires, but merely stated that that it would no longer use products from the Sunnywell company in future. The application is urgent and issued ex parte (Rule. 194.2 a),b),c)  197 RoP).Despite the pre-trial correspondence, the first respondent has neither issued a cease-and-desist declaration nor provided information about the manufacturer from whom it obtains the saw wires.  Without the application, the applicant will not be able to ascertain the origin of the wires that may infringe the patent. Once the stock of saw wires has been used up by the first respondent, the applicant will no longer be able to secure evidence and will not be able to examine the wires in question. It is not detrimental that the applicant has been aware of the wires since March 2024 and that the revocation of the opt-out was not registered until September 2025 however. Before the opt-out was revoked, the applicant was unable to file the application before the UPC. In view of the fact that the UPC is still a relatively new court system, the Chamber does not consider it detrimental to urgency at this stage if the party makes strategic considerations as to whether to submit a patent to the jurisdiction of the UPC and if these considerations take a certain amount of time.There is currently a risk that the respondent will transfer the remaining wires to one of its other production sites. It is not possible to waive the requirement to provide security for an ex parte order (R. 196.6 RoP).  Special circumstances to justify such an order do not exist in the present case, as the preliminary correspondence shows that the applicant has had time since June 2024 to prepare the provision of appropriate security.

IPPT20241017, UPC CFI, CD Munich, Nanostring v Harvard
Patent revoked in its entirety. Court to examine its international jurisdiction of its own motion. The parties are not the same for the purposes of Articles 29  and 31 Brussels I recast Regulation. The fact that both parties belong to the same group of companies and have the same parent company is insufficient to conclude that their interests are, even though they may be to a large extent aligned, identical and indissociable. The Court will not stay the related revocation action (Article 30 Brussel I recast, R. 295m RoP). The reasons listed, the interests of the parties and procedural economy outweigh the risk that UPC CoA and BGH proceedings may become pending in parallel (and the related risk of contradictory decisions). Assessment of novelty (Article 54 EPC) requires the determination of the whole content of the prior publication. It is decisive whether the subject-matter of the claim with all its features is directly and unambiguously disclosed in the prior art citation. Applying the above standard to the case at hand, the Central Division comes to the conclusion that the subject matter of claim 1 of the Patent as granted lacks novelty over document D10, Göransson et al. Inadmissible new auxiliary request maintaining all the auxiliary requests already proposed in the application to amend that was made in the Statement of Defence (R. 30 RoP, R. 50 RoP) Under the front-loaded system of UPC proceedings parties are under an obligation to set out their full case as early as possible (Preamble RoP 7, last sentence). The subsequent application to amend was filed late in the proceedings, after closure of the written proceedings and after the interim conference, less than 1.5 months before the (at the time scheduled) oral hearing. Auxiliary request 1 lacks inventive step (article 56 EPC). Starting from Göransson, it was in the view of the Central Division obvious for the skilled person at the priority date to transfer the method of Göransson to an in situ context, for instance in FISH, to detect e.g. RNA or proteins, thereby arriving at the claimed subject matter.

IPPT20241015, UPC CoA, Photon Wave v Seoul Viosys
Leave to appeal under R. 220.2 RoP must be expressly granted by the Court of First Instance and cannot be presumed. The phrase that the order "is subject to appeal under the conditions laid down by the provisions of R. 220.2 RoP" is for information purposes only and not a grant of leave to appeal (Article 73(2) UPCA).

IPPT20241015, UPC CFI, LD Lisbon, Ericsson v Asustek
Application for provisional measures dismissed (Article 62 UPCA, R. 211 RoP). The allegation that no acts of infringement at all were committed is irrelevant in the assessment of territorial competence (Article 33(1)(a) UPCA) because it does not challenge the territorial connection to the Local or Regional Division. It should be considered as a defence based on the merits. Art. 33(1)(a) UPCA applies regardless of whether the defendant is an infringer or an intermediary. Temporal urgency (R. 211(4) RoP): The burden of proving urgency and due diligence in initiating proceedings is not satisfied if the Applicant fails to provide the Court with the exact date when it became aware of the infringement, particularly when the Court has no other factual or objective temporal indication beyond the date the infringement commenced. An auxiliary request to amend a patent claim in provisional measures is incompatible with the nature of such proceedings (Article 62 UPCA, R. 211. RoP). Requirements for preliminary injunctions (R. 211 RoP) are cumulative. The cumulative nature of the previously mentioned requirements allows the Court not to address all the requirements if one is not satisfied. […] In such cases, the Court may exercise discretion in assessing the other requirements presented by the parties. Owning the domain www.asus.com is infringing (Article 25(a) UPCA) as it is evident that through this domain and its sub-domains, products containing the accused Modules are offered and sold.

IPPT20241015, UPC CoA, Microsoft v Suinno
“Action manifestly bound to fail” (R. 361 RoP, R. 220.3 RoP) must be reserved for clear-cut cases. It should not result in a full exchange of arguments and evidence, as is clear from the use of the words ‘manifestly inadmissible’, and should not require further in-depth analysis, as rightly pointed out in the impugned order. Microsoft has failed to demonstrate that a review of the impugned order on the requirement set under R. 361 RoP is necessary to ensure a consistent application and interpretation of the RoP or any other objective of the discretionary review procedure. Microsoft’s position that the impugned order is incorrect and does not provide a correct interpretation of Art 48(5) UPCA, R. 8.1 and R. 290.2 RoP, and Art. 2.4.1 of the Code of Conduct for Representatives who appear before the Unified Patent Court, is not sufficient for the Court to grant Microsoft’s application, in particular as the issue of independence of a UPC representative is also the subject matter of a R. 220.2 RoP appeal currently pending, during which both Microsoft and Suinno have the opportunity to address it thoroughly. 

IPPT20241014, UPC CFI, CD Paris, Meril v Edwards
Unrestricted access granted to all pleadings and evidence in ended infringement proceedings and counterclaims for revocation (Article 45 UPCA, R. 262 RoP). Generic interest: the mere fact of operating in the same field as the patent in dispute is not sufficient to establish a specific interest in the proceedings’ documents on their part. Applicants’ requests may not be considered insufficiently reasoned, because the fact that the applicants are carrying out preparatory activities to possibly enter the market concerned by the patent at issue is adequate to establish an interest in accessing the requested documents.

IPPT20241014, UPC CFI, LD The Hague, Winnow v Orbisk
Request to produce evidence partially awarded (Article 59 UPCA, R. 190 RoP). Limited to evidence pertinent to the fulfilment of features 1.4 and 1.5 which has been disputed and thus far only has been supported by publicly available evidence. It is credible, and at any rate not really put into question, that such evidence exists and lies in control of Orbisk.

IPPT20241014, UPC CFI, CD Paris, Kinexon v Ballinno
Ballinno ordered to provide security for legal cost of claimant  Kinexon in revocation action (Article 69(4) UPCA, R. 158 RoP). It is not necessary that the party claiming security has the formal position of a defendant in the lawsuit in which it claims security. It only matters whether it reacts to a claim of the other party. Therefore, a party is also defendant in the sense of Art. 69 (4) UPCA if it responds with a revocation action against an application for provisional measures. Irrevocable commitment to the Claimant in the proceedings not to further pursue its infringement case unless and until the Court of Appeal provisionally rules that the method and system, which Kinexon provided to UEFA infringes a valid EP 067 […] does not alter the risk that a possible cost order against Ballinno might not be recoverable by Kinexon and does not change the fact that Kinexon has costs which arise in reaction to Ballinnos application for provisional measures.

IPPT20241011, UPC CFI, LD Munich, i-mop v Arcora
Default judgment, including injunction and provisional damages (Article 37 UPC Statute, R. 355 RoP). Express provision in Article 37(1) of the UPC Statute that failing to file written submissions in defence after having been served with a document  instituting proceedings is sufficient. Not necessary that this express provision is also present in the Rules of Procedure. The UPC Statute takes precedence over the Rules of Procedure.

IPPT20241011, UPC CFI, LD Düsseldorf, Truma v CAN
No extension of time period for lodging Preliminary objection or Statement of defence (R. 9(3) RoP, R. 19 RoP, R. 23 RoP). Not justified by an alleged ineffectiveness of the service of process at the trade fair: both the start of the time period for filing a Preliminary objection and the time period for filing a Statement of defence are linked to the service of the Statement of claim

IPPT20241011, UPC CFI, LD Munich, SES-imagotag v Hanshow 
Costs for the appeal instance rejected due to failure to comply with the time limit. (R. 151 RoP, R. 320 RoP, R. 9(3) RoP). Re-establishment of rights under R. 320 RoP, as a lex specialis, takes precedence over Rule 9.3 (a) RoP.

IPPT20241011, UPC CFI, LD Hamburg, Daedalus v Xiaomi
Justified restriction of access to US-attorneys involved in parallel proceedings in the US with the intention to align the arguments and to provide the technical input to proceedings outside of the UPC System – and even outside of the EU (R. 262A RoP). Initially insufficiently blacked-out illustrations are part of the protection order (R. 262A RoP). The mere fact, that the Defendants insufficiently blacked-out these two illustrations in the redacted versions, though they were highlighted in grey in the redacted versions, cannot be considered as a waiver of the right to protection of what was requested at the same time. 

IPPT20241011, UPC CFI, LD Paris, Dexcom v Abbott
No leave granted to ABBOTT to amend case to cover new version of ABBOTT application (R. 263 RoP). Justified that ABBOTT could not have disclosed commercially sensitive information about  the launch of a new product to its competitor DEXCOM. The Amendment will unreasonably hinder DEXCOM in the conduct of is action given that the oral hearing is in ten days time and it put DEXCOM in a situation where it would not be able to appropriately prepare for the oral hearing due to the new scope of the litigation. ABBOTT may also be able to prove that its new version of the app does not infringe the patent at issue at the time of enforcement if infringement measures are ordered in the present case. 

IPPT20241011, UPC CFI, LD Munich, MSG v EJP
Infringement action and revocation counterclaim after revocation of the patent by Technical Board of Appeal. Withdrawal of infringement action requires a decision on the allocation of legal costs and other expenses Article 69 UPCA, R. 150 RoP, R. 265.2(c) RoP). Unnecessary legal costs and other expenses within the meaning of Art. 69(3) UPCA are those that are caused by a measure that was not necessary and/or unsuitable for enforcing or defending a right and that can be separated as such. However, it does not include costs that are (ultimately) unnecessarily incurred due to unsuccessful enforcement or defence as a whole. These are already covered by the basic rule of Art. 69(1) UPCA […]. Whether a severable measure was unnecessary is to be assessed from the ex ante perspective of a reasonable and economically rational party. An objective standard is to be applied. Reimbursement of 60% of the Court fees for the infringement action (R.  370.9 (b) (i) RoP). No need to adjudicate revocation action (R. 360 RoP). Devoid of purpose because of the revocation of the patent in suit by the Technical Board of Appeal of the EPO of 4 July 2024. The costs of the revocation proceedings shall be borne by the plaintiff. The defendant is to be reimbursed 60% of the court fees paid for the counterclaim in analogous application of R. 370.9(b)(i) RoP.

IPPT20241010, UPC CFI, LD Düsseldorf, Seoul Viosys v epert e-Commerce - II
Patent revoked (Article 65 UPCA). Lack of inventive step (Article 56 EPC). On this basis, a person skilled in the art who approaches the embodiment shown in (prior art) Figures 23 to 26 on the basis of the description will come to the conclusion that the light-emitting diode forming the subject matter of this embodiment has several, but at least two electrodes (140).

IPPT20241010, UPC CFI, LD Düsseldorf, Seoul Viosys v epert e-Commerce - I
UPC has international competence regarding counterclaims for revocation of non-opted out (European) patents (Article 32(1)(e) UPCA, Article 83(3) UPCA, Article 24(4) Brussels I Recast). Claims brought against a plurality of defendants in one procedure (R. 303 RoP, R. 25.1 RoP) are to be treated as formally and substantively independent proceedings without the respective actions of one defendant having advantages or disadvantages for the other defendant. If individual defendants decide against filing a revocation counterclaim and the counterclaim is therefore expressly filed only by individual defendants, the validity argument is formally excluded for the defendants not involved in the revocation counterclaim. They cannot therefore successfully invoke the lack of validity in their proceedings. However, as long as the court refrains from separating the proceedings against several defendants, this has no practical effect. Direct literal infringement (Article 25 UPCA). Since the attacked embodiment makes literal use of the technical teaching of the patent in suit, the defendants infringe the patent in suit directly and literally by offering and distributing the attacked embodiment. Presumption of acts of infringement. By offering and marketing the challenged product, the Defendants have also committed acts of infringement within the meaning of Art. 25(a) UPCA. At the same time, offering and putting on the market also creates a rebuttable presumption that the defendants are also using the challenged product, importing or possessing it for the purposes of offering, putting on the market or using it. Orders and measures not made subject to security (R. 118.8 RoP). It is for the defendant to present facts and arguments as to why it appears appropriate in the specific case to make the order or measure subject to a security to be determined by the court […]. 

IPPT20241010, UPC CFI, LD Düsseldorf, Sodastream v Aarke
Request for adjournment of oral hearing because of outstanding order of the Court of Appeal concerning dismissed request for security for costs dismissed (Article 74(3) UPCA, R. 334 RoP). No indication that it may not be efficient and cost effective to hold the oral hearing at this stage. Contrary to the opinion of Defendant the Court must not await a final order of the Court of Appeal on the security of costs before making its own decision on the merits in this case.

IPPT20241009, UPC CoA, Suinno v Micrsoft
Request for discretionary review in appeal (R. 220.3 RoP) only admissible, if leave to appeal against the impugned order is required (R.220.2 RoP) and the Court of First Instance refused to grant leave within 15 days of the order (R.220.3 RoP). Failure to indicate in the order for security that an appeal may be lodged in accordance with Article 73 of the Agreement and Rule 220.2 as required by R. 158.3 RoP cannot be that the unsuccessful party is deprived of its right to request leave to appeal an neither can the absence be understood as an implied leave to appeal. Instead, the unsuccessful party can still ask the Court of First Instance to grant leave to appeal by a separate decision.

IPPT20241009, UPC CoA, SharkNinja v Dyson
Level of detail required to meet the standard of R 226 Rop for the Statement of grounds of appeal must be assessed on a case-by-case basis depending on, among other things, how detailed the impugned order is in the contested parts. General statement that all submissions from the pleadings submitted at first instance are maintained in  full is not enough as such. [...] From this, in conjunction with SharkNinja’s initial statement that all submissions from the pleadings submitted at first instance are maintained in full, it is clear that SharkNinja also want to include in the appeal their arguments from the Rejoinder to the Reply that they were not able to present at the hearing before the Local Division. New evidence FBD 27 and FBD 28 disregarded in appeal (R. 222.2 RoP). Relevancy of submission not convincingly argued and submitted over three and one month, respectively, after having been obtained

IPPT20241009, UPC CoA, Eoflow v Insulet
Request for expedition of the appeal admissible but unfounded (R. 9.3(b) RoP, R. 235 RoP). EOFlow has not sufficiently substantiated, and the Court of Appeal fails to see, why it was necessary for EOFlow to await the decision of the Central Division on Menarini’s request for intervention, before filing the present request. By nevertheless doing so and taking ten days to file its Statement of appeal and grounds of appeal and this request, an order of the Court of Appeal would only be possible prior to the aforementioned oral hearings if Insulet would be given substantially less time for filing its response. The Court of Appeal is of the opinion that EOFlow has thus by filing its request at an unnecessary late point of time, insufficiently taken into account the interests of Insulet.

IPPT20241008, UPC CFI, CD Paris, Edwards v Meril
Request rejected to extend deadline for lodging a Rejoinder (R. 52 RoP. R. 9.3 RoP) from 16 October to 25 October, the deadline for lodging a Reply. Granting the application would allow the applicant more time to prepare their written pleadings than is ordinarily provided for by the relevant provision and this would create an imbalance between the parties, given that the claimants have already complied with the shorter, standard deadline set forth in the Rules. Requests for allocation of concerning applications for time extension will be decided in the final decision on the merits (R. 118.5)

IPPT20241007, UPC CFI, RD Nordic-Baltic, Abbott v Dexcom
Order following interim conference (R. 105 RoP). Request to change claim dismissed (R. 263 RoP). Request should have been in the application, not in an annex; changes asked are not mere corrections, could have been formulated earlier and extend the scope of the injunction. No need for alternative claims as the Court may grant the relief in full or in part as requested (Article 76.1 UPCA). Application to provide information dismissed as disproportionate (Article 67 UPCA, Article 8 Enforcement Directive, Rule 191 RoP). The Court order has to be as precise as possible, so that the obligated person may understand without a doubt what kind of information one has to provide. Heller document dismissed as late filed ground for revocation (R. 44 RoP). The Heller document was submitted to the Court by Defendants on 12 August 2024 in its Reply to the Defence to Revocation. The Court is in the position that all the ground for revocation should have been presented in the counterclaim.

IPPT20241004, UPC CoA, Meril v Edwards Lifesciences
Successful party in case of disposal of an action following a cease-and-desist-letter undertaking by the defendant (Article 69 UPCA, R. 360 RoP, Article 14 Enforcement Directive) must be determined on the basis of the specific characteristics of the case and in particular the requests of the parties and the content of the undertaking. As a general rule, the claimant must be considered the successful party. Grounds of equity may require that the claimant bear the costs where, in short, the claimant caused unnecessary costs by bringing proceedings against a defendant which did not give cause for action. No reasonable doubt that the Court of Appeal’s interpretation of Art. 69(1) UPCA is in conformity with Art. 14 of Directive 2004/48. The Court of Appeal will therefore not refer a question to the CJEU. Meril must be regarded as the unsuccessful party. Through Meril’s cease-and-desist undertaking, Edwards achieved the main purpose of its action for provisional measures, namely that Meril cease marketing products which Edwards considers to be covered by the patent at issue. Meril thus effectively placed itself in the position of the unsuccessful party.

IPPT20241002, UPC CFI, LD Munich, NEC V TCL
Patent pool administrator admitted as intervener: has a direct and present legal interest in the outcome of the proceedings (R. 313 RoP). As pool administrator, Applicant is entitled to conduct license negotiations with implementers of the HEVC standard, to enter into license agreements for the patents included in the pool, to collect royalties, and to distribute the royalty income to the pool members. Intervention not precluded by the fact that it does not prevent a violation of Article 101 TFEU because the Applicant and the Claimant have the possibility to exchange sensitive information under competition law in their written submissions. The parties have the same opportunities to exchange information outside the proceedings and the intervention anyway. By admitting the intervention, the Applicant is a participant to the proceedings and is to be treated as a party in accordance with Rule 315 (4) RoP. As it must accept the proceedings at this stage, it must be allowed to inspect the files in order to conduct the proceedings appropriately. However, the Court has already classified certain parts of the FRAND Counterclaim of the Defendant 1) and of the Statement of defences briefs of the Defendant 1) – 6) and exhibits as confidential (R. 262A RoP) The Applicant can therefore not be granted unrestricted access to this information. 

IPPT20241001, UPC CFI, CD Milan, Eoflow v Insulet
Request for intervention admissible but rejected (R. 313 RoP). Due to lack of capacity on the part of CMS, the procedure for intervention can only be initiated in hard copy. Third party having a mere de facto interest in one of the parties being victorious to bolster a parallel case has no legitimacy to intervene.

IPPT20241001, UPC CFI, LD Milan, Insulet v Menarini
Request for intervention by EOFlow in summary proceedings for provisional measures rejected (R. 313 RoP, R. 206 RoP): the outcome of this proceedings only affects Eoflow indirectly: it is only the supplier and the potential negative effects (an economic impairment) at this stage appears only a side effect;