UPC CFI LD Dusseldorf, 10 October 2024: Claims against multiple defendants - independent proceedings

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, Seoul Viosys v epert e-Commerce - I