UPC CFI LD Munich, 2 September 2024: Application to add 3rd defendant rejected as late filed

Application to add OTECH Germany as third defendant rejected as late filed (Rule 305 RoP). 

Plaintiff was aware in June 2023 that OTECH Germany GmbH had been found guilty of patent infringement by the Mannheim District Court. […] it could and should have used its knowledge of this judgement as an opportunity to conduct further investigations, especially since it had already taken legal action against the first and second defendants before the local chamber for patent infringement. If it had done so, it would have been able to access the annual report, which has been available online since 4 August 2023, at an earlier date than 18 February 2024 and, accordingly, file the motion to allow the extension of the action much earlier than 5 June 2024. If the extension of the action were allowed, OTECH Germany GmbH would be limited by Art. 33 (4) UPCA to doing so within the framework of a counterclaim for revocation. In this context, a further restriction to those invalidity attacks already presented by the first and second defendants in the context of their invalidity counterclaim would not appear to be fair.

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