Article 24

Sources of law

1. In full compliance with Article 20, when hearing a case brought before it under this Agreement, the Court shall base its decisions on:
(a) Union law, including Regulation (EU) No 1257/2012 and Regulation (EU) No 1260/2012;
(b) this Agreement;
(c) the EPC;
(d) other international agreements applicable to patents and binding on all the Contracting Member States; and
(e) national law.
2. To the extent that the Court shall base its decisions on national law, including where relevant the law of noncontracting States, the applicable law shall be determined:
(a) by directly applicable provisions of Union law containing private international law rules, or
(b) in the absence of directly applicable provisions of Union law or where the latter do not apply, by international instruments containing private international law rules; or
(c) in the absence of provisions referred to in points (a) and (b), by national provisions on private international law as determined by the Court.
3. The law of non-contracting States shall apply when designated by application of the rules referred to in paragraph 2, in particular in relation to Articles 25 to 28, 54, 55, 64, 68
and 72.

Case Law:

Court of Appeal

IPPT20260602, UPC CoA, Kodak v Fujifilm 
Art. 24(3) UPCA specifically leaves open the possibility that there is a need for the UPCA to apply national law, including that of non-contracting States (Article 24(3) UPCA) The use of ‘in particular’ makes clear that the areas of application of such foreign law is not limited to the matters referred to in the articles mentioned.  

IPPT20250813, UPC CoA, Boehringer Ingelheim v Zentiva
Although national law is a source of law pursuant to Art. 24 UPCA, it is for the parties to bring forward facts and evidence about the content of national law and its application. 

IPPT20250617, UPC CoA, Knaus Tabbert v Yellow Sphere

Applicable law; autonomous UPCA law (Article 24 UPCA). The legal framework in Austria and Germany is not decisive for the interpretation of Art. 82(2) UPCA because Art. 82(2) UPCA contains an independent provision that must be interpreted autonomously.

IPPT20250116, UPC CoA, Fives v REEL
The Court’s competence (or jurisdiction) includes a separate action for determination of damages after a national court - before entry into force of the UPCA - has established the existence of an infringement of a European patent and an obligation in principle for the infringer to pay damages (Article 32(1) UPCA, Article 24 UPCA). The wording of Art. 32(1)(a) UPCA is inconclusive; […], while […] the rationale behind Art. 32(1)(f) UPCA speaks in favour of jurisdiction of the UPC for separate damages actions, when the infringement has been established by a national court. The Brussels Regulation is not relevant to the question of interpretation of Art. 32(1)(a) UPCA. Art. 71b Brussels Ia Regulation only regulates the international jurisdiction of the UPC in relation to the courts of non-contracting Member States. Through Art. 68 UPCA, the UPC has its own damages provisions. If an action is lodged with the UPC, within its jurisdiction and encompassing a damages request, there is by consequence a complete set of substantive rules applicable insofar as the European patents of the CMSs are concerned. They are subject to uniform substantive law and procedural rules. The Rules provide for adjudication in – at the very least – one type of scenario, where the existence of an infringement will not have to be assessed in law and in fact by the Court. There does not seem to be a reason to treat the situation in the present case differently.

Court of First Instance

IPPT20250901, UPC CD Paris, Seoul Viosys v Emporia
EU law, abuse of right and “straw companies” (Article 24 UPCA). European Union law does not specifically provide for an institution corresponding to contractual simulation or explicitly regulate “straw companies”, but it does include a general principle of the prohibition of abuse of rights. Insufficient evidence that the claimant for invalidity is a straw company. 

IPPT20250801, UPC CFI, LD Paris, NJ Diffusion v Gisela Mayer
Claim against bankruptcy receiver of claimant and intervening party (R. 313 RoP) for payment of provisional costs inadmissible under French law (Article 24 UPCA, R. 8 RoP, R. 311 RoP). That the bodies responsible for the collective proceedings have chosen to continue the proceedings (paragraph 18 of GM's final statement of defence), does not in any way demonstrate the existence of fault. The French Court of Cassation has repeatedly stated that the liability of the bodies involved in collective proceedings is a special liability regime requiring proof of gross and independent negligence. Such fault is characterised, for example, if the insolvency practitioner decides to continue the proceedings when the company's situation is irretrievably compromised and does not seek the cessation of the company's activities or its liquidation

IPPT20250731, UPC CFI, RD Nordic-Baltic, Texport v Sioen
Relevance of the determination of the applicable law (Article 24 UPCA). With respect to infringements that have taken place or at least begun before the 1 June 2023, the different approaches outlined above will often lead to the same result, especially if/when the UPC – based on the extensive harmonisation – presumes that the national substantive law in question and the UPCA corresponds. […]  From a practical point of view, it seems like the main difference between these two approaches often would be that the approach applied by Local Division Mannheim would take national law into account not only when it is more favourable to the alleged infringer, but also when it is more favourable to the right holder/licensee. In this context, something should also be said about damages and, in particular, applicable limitations on the right to such damages. The national laws of the contracting member states contain different types of provisions that limit the possibility to receive damages for infringements that took place a long time ago. […] the Court does not need to take a final position on these questions in this decision, but the Court will come back to this topic when discussing damages and communication of information. 

IPPT20250730, UPC CFI, LD Düsseldorf, Headwater Research v Samsung Electronics
Presumption of the register that Claimant is the person entitled to be registered as proprietor of European patent not rebutted by presentation of alleged co-ownership (R. 8.5(c) RoP) given limitation periods under German and French law.

IPPT20250718, UPC CFI, LD Mannheim, Fujifilm v Kodak - II

IPPT20250718, UPC CFI, LD Mannheim, Fujifilm v Kodak - I

Infringement action exclusively governed by procedural law of the forum, in accordance with fundamental principles of international procedural law. 

IPPT20250410, UPC CFI, LD Düsseldorf, Yellow Sphere v Tabbert

Applicable law: (Article 24 UPCA) the substantive law as laid down in the UPCA applies to acts that began before the entry into force of the UPCA and continued after 1 June 2023.  Damages or compensation derived from provisional protection conferred by a published European patent application (Article 32(1)(f) UPCA). Since such compensation is not regulated in either the UPP Regulation or the UPCA, the court must apply the provision of Art. 24(1)(c) UPCA on the basis of Art. 67 EPC, which grants Member States discretion in terms of how they structure such compensation. Since there is currently no uniform regulation on the question of compensation, it is initially for the plaintiff seeking such compensation to demonstrate that the conditions for compensation are met in the individual Member States in question.

IPPT20250402, UPC CFI, LD Mannheim, Fujifilm v Kodak - I
The substantive law to be applied to on the instant facts of the case is the UPCA as the attacked embodiments (SONORA XTRA-3 plates) had been marketed at least also after 1 June 2023 (IPPT20250311, UPC CFI, LD Mannheim, Hurom v NUC - I). 

IPPT20250311, UPC CFI, LD Mannheim, Hurom v NUC - I
Applicable law. The determination of the substantive law applicable to an alleged infringement is to be strictly distinguished from the jurisdiction to hear the case. With regard to traditional European bundle patents (a) the substantive national laws of the UPCA member states applies to acts committed before the entry into force of the UPCA on 1 June 2023, (b) the substantive law as laid down in the UPCA applies (i) to acts committed after the entry into force of the UPCA and (ii) to ongoing acts started before the entry into force of the UPCA and continued after the entry into force on 1 June 2023. An infringing act is ongoing if the infringer continues its infringing behaviour although he could have stopped the infringement in the light of the entry into force of the new regime on 1 June 2023. However, in order to avoid potential hardship, the party concerned may rely on the provisions of the respective national law in force prior to the entry into force of the UPCA with regard to acts of past use which lie before 1 June 2023. 

IPPT20250210, UPC CFI, LD Munich, Phoenix v ILME
IPPT20250210, UPC CFI, LD Munich, Esko v XSYS
Preliminary objection admissible, but unfounded (R. 19 RoP). The UPC's has jurisdiction relating to a European patent that has not yet lapsed at the time of entry into force of the UPCA pursuant to Art. 32(1)(a) UPCA, Art. 2g), Art. 3c) UPCA and covers infringement actions to the extent that they are based on acts of use which are alleged to have taken place before the UPCA entered into force and/or in the period between an opt-out and the withdrawal thereof (Article 84 UPCA). Jurisdiction and applicable law are separate aspects that must be assessed separately. It cannot be concluded from the UPC's jurisdiction that the UPCA always applies to every case to be decided, nor is the applicable law decisive for the UPC's jurisdiction (Article 24 UPCA, Article 32 UPCA).

IPPT20240213, UPC CFI, LD The Hague, Plant-e v Arkyne
Defendant’s request for security for costs (“cautio iudicatum solvi”) rejected (Article 69(4) UPCA; Rule 158 RoP, Article 24 UPCA). Protecting the rights of the defendant should be balanced against the right of the claimant to enforce its patent rights. The main rationale for the cautio is to secure the enforceability of a potential cost order. If such order is directly enforceable after it is granted, it can serve as grounds not to allow a cautio at the start of or during the proceedings. UPC decisions and orders are directly enforceable in the Netherlands in accordance with Art. 82 UPCA, Art. 71d Brussels and R. 354.1 RoP. A cautio in this case is hence not justified because of the risk that a possible cost order in favour of Bioo will not be directly enforceable. This contrasts with the situation decided by the CD Munich [IPPT20231030]  – [....] – on which Bioo relies. In that case the relevant claimant was domiciled outside the EU and no treaty regarding the execution of judgments was in place. As a rule, the court finds that a cautio based solely on (expected) material unenforceability should be awarded in exceptional circumstances only. The court agrees that under the circumstances in the present situation, which involves two competing SMEs with limited finances, the financial strain on the claimant can be a serious impediment to enforcement of its rights and to access to justice, and hence for granting a cautio. Lastly the court takes into consideration that according to Dutch national procedural law it is not possible to give a cautio vis-a-vis plaintiffs domiciled or residing in the Netherlands (and hence in the EU) under any circumstances, and also if there is good reason to doubt the possibility of recovery of a potential cost order due to the financial situation of the claimant.

UPC CFI, LD Vienna, 13 September 2023, CUP&CINO v Alpina Coffee
The scope of protection of a European patent is to be interpreted on the basis of Article 69 (1) EPC including its interpretative protocol in conjunction with Article  24(1)(c) UPCA. Accordingly, the scope of protection of the patent is determined by the content of the patent claims, for the interpretation of which the description and the drawings must also be taken into account. In this respect, the interpretation of the patent claims serves not only to eliminate any ambiguities, but also to explain the technical terms used therein and to clarify the meaning and scope of the invention described therein. The patent description is the source material for determining the technical teaching that is protected by the patent claim. This form of interpretation combines adequate protection for the patent proprietor with sufficient legal certainty for third parties. The aspect of legal certainty requires that interested third parties are able to recognise whether a contemplated, planned or already realised specific embodiment falls within the scope of protection of the patent claim.