UPC CFI, CD Milan, 8 July 2025: Decision by default and required level of evidence

Direct and indirect patent infringement (Article 25 UPCA, Article 26 UPCA), decision by default (R. 355. RoP). 

Competence of Central Division regarding infringement in Bulgaria by a defendant outside of the UPCA territory (Greece)(Article 33(1) UPCA). 

Claim interpretation (Article 69 EPC). The patent description generally presents the patent’s “lexicon”.  When identical terms are used in a claim, they generally have the same meaning. However, 'claim language' does not forbid the use of different words for identical parts of a tool. It is only for certain parts of a device addressed in the claim that different terms are used. 

Level of evidence required and burden of proof for an in absentia decision. Rule 355.2 has a broader scope than Rule 171.2 and deals with a general non-contestation of all facts phrased in the statement of claim. Rule 355.2 requires that non-contestation be accompanied by facts justifying the remedy to prevent the claimant from gaining an unfair advantage [...]. Whether it is a declaration of infringement or a patent revocation, a decision cannot be issued 'by default' merely by acknowledging the absence of a defence. Rule 355.2 must be interpreted in light of the burden of proof principle set out in Rules 171.1 and 172.1, [...]  In any case he claimant must put forward all elements in its possession to justify the legal requests. These elements constitute the de minimis requirements for a statement of claim to be considered complete and admissible. Rule 355.2, therefore, imposes de minimis factual allegations for a decision to be issued in absentia, namely those set out in Rules 12 and 13 RoP. It is not necessary to take a stand on patent invalidity, as the court does not raise the issue of patent validity ex officio, even in a decision by default. 

Direct infringement (Article 25 UPCA). 

Rebuttable presumption regarding other acts addressed in Article 25 UPCA. 

The Court may find for a direct infringement, where the completion of the infringing product by the user is clearly to be if a concretely outlined completion of the patented device is to be expected with certainty. 

Indirect infringement (Article 26 UPCA). 

“Offer” is to be understood broadly: Since the attacked embodiment can be ordered online from [Germany, Italy, France and Bulgaria] (with shipment to Bulgaria or pick up in Greece), it is offered there. 

The requirements of Art. 26 with regard to the so called “double territoriality link” are met where the offer and the putting into effect are established with regard to the territory of the contracting member states where the EP is valid. It is not necessary that both the offer and the putting into effect refer to the same contracting member state, even with regard to “bundle patents”. 

IPPT20250708, UPC CFI, CD Milan, Maschio Gaspardo v Spiridonakis Bros