Article 54

Burden of proof

Without prejudice to Article 24(2) and (3), the burden of the proof of facts shall be on the party relying on those facts.

Case Law

Court of Appeal

IPPT20251125, UPC CoA, Meril v Edwards
General principles regarding inventive step (Article 56 EPC). The burden and presentation of proof lies with the claimant in a revocation action (Art. 54 and 65(1) UPCA, R. 44(e)-(g), 25.1(b)-(d) RoP). Even though proof of certain facts, if contested, may be required, the assessment of the relevant facts and circumstances is a question of law. 

Court of First Instance

 IPPT20260212, UPC CFI, LD Düsseldorf, Align v Angelalign 
Preliminary injunction granted . (Article 62(1) UPCA ,  Rule 209 RoP, Rule 211 RoP) . Claim interpretation (Article 69 EPC) Defendants disagreement with claim interpretation applied by the EPO in the examination concerning lack of validity of the patent does not mean that the burden of proof should shift to the patent proprietor (Article 65 UPCA, Article 54 UPCA).

IPPT20260123, UPC CFI LD Paris, Guardant Health v Sophia Genetics
Allegations of infringement by GUARDANT HEALTH suffer from a "lack of evidence": The burden of proof for the alleged infringement lies with the party invoking it .  (Article 54 UPCA, Art. 25 UPCA , R. 211.2 RoP). Applicant has failed to demonstrate the existece of an infringement of the patent by "DDM access" with a sufficient degree of certainty . It is not sufficient to rely mainly on a press release to demonstrate how SOPHIA GENETICS's software processes data.

IPPT20251127, UPC CFI, CD Milan, Pai Pharma v Philips
Inventive step (Article 56 EPC). Burden of proof of existence of common general knowledge is on the party invoking it (Article 54 UPCA). 

IPPT20250725, UPC CFI, LD Brussels, OrthoApnea
Costs claimed are ‘facts’, for which – if disputed – the claimant needs to provide evidence (Article 54 UPCA, R. 172.1 RoP). Same standard of proof. If the ‘facts’ (‘costs’) are disputed by the defendant and if the claimant has evidence to support the ‘facts’ (‘costs’) presented, the claimant is obliged to provide such evidence. Contrary to what R 156.1 RoP suggests, such evidence does not only have to be submitted if the Court requests it. R. 156.1. RoP merely states that the Judge-Rapporteur has the power (‘may’) to have written evidence submitted to him and does not relieve the claimant of his burden of proof as set out in Article 54 UPCA and R. 172.1. RoP. The Court may apply the ceiling (as a safety net) with regard to recoverable representation costs if the circumstances of the case justify this. Translation costs (including translations made in the light of the defence and communication between clients and their legal representatives (‘representatives’) (or translations concerning decisions taken in the language of the proceedings) as well as the travel and accommodation costs of the legal representatives (‘representatives’) fall under representation costs. R. 152.1. RoP should be interpreted broadly in this sense.

IPPT20250721, UPC CFI, CD Paris, Sibio v Abbott
Common general knowledge (‘CGK’) is subject to evidence and the burden lies with the party invoking it (Article 54 UPCA). 

IPPT20250606, UPC CFI, LD Munich, Tiroler Rohre v SSAB
Burden of proof regarding infringement (Article 25 UPCA, Article 54 UPCA). The plaintiff must demonstrate and prove that all the features of the patent in suit are realised by the contested embodiments (ramming tips), since it alleges infringement and thus the realisation of all the features of the patent in suit by the contested embodiments. If the defendants claim that patent infringement is impossible due to circumstances outside the scope of the patent claim, the defendants bear the burden of proof for this claim . 

IPPT20250221, UPC CFI, LD Hamburg, Teleflex Life Sciences v Speed Care
The burden of presentation and proof for facts allegedly establishing the entitlement to initiate proceedings and the infringement or imminent infringement of the patent, as well as any other circumstances allegedly supporting the Applicant's request, lies with the Applicant, (Article 54 UPCA, R. 13 RoP) whereas, […] the burden of presentation and proof for facts concerning the lack of validity of the patent and other circumstances allegedly supporting the Defendant's position lies with the Defendant. 

IPPT20250122, UPC CFI, CD Paris, NJOY v VMR

Common general knowledge (Article 56 EPC) is subject of evidence (Article 54 UPCA)

IPPT20241226, UPC CFI, CD Paris, Advanced Bionics v MED-EL

Common General Knowledge. Pursuant to Article 54 ‘UPCA’, the burden of proving the existence of the ‘CGK’ lies with the party invoking it. Without bearing the burden of proof, the opposing party may present evidence to establish the ‘CGK’, including evidence to the contrary. 

IPPT20240827, UPC CFI, LD Munich, Hand Held Products v Scandit

Preliminary injunction for indirect infringement (Article 62 UPCA, R. 211.2 RoP). Validity. Burden of proof. It is the task of the defendant in the present case to present arguments based on the prior art that make the legal validity of the patent in dispute appear insufficiently secure (Article 54 UPCA). Due to the summary nature of the examination of the legal validity in proceedings for the adoption of interim measures, the number of arguments raised against the legal validity must generally be reduced to the best three from the defendant's point of view. The background to this is that while a summary judgement on questions of fact is conceivable, a summary examination of questions of law is not. 

IPPT20240731, UPC CFI, LD The Hague, Amycel
Novelty arguments rejected (Article 54 EPC, Article 54 UPCA). Both novelty arguments raised by Defendant are unsubstantiated whereas the burden of presentation and proof for facts concerning the lack of validity of the patent and other circumstances allegedly supporting the Defendant's position lies with the Defendant. 

IPPT20240703, UPC CFI, LD Düsseldorf, Kaldewei v Bette
Burden of proof invalidity (article 54 UPCA). The burden of presentation and proof for facts relating to an attack on the novelty and/or inventive step of the patent in dispute lies with the defendant. 

IPPT20240619, UPC CFI, LD The Hague, Abbott v Sibio – EP283
Preliminary measures denied. No sufficient degree of certainty that patent is valid (Article 62(4) UPCA; Rule 211(2) RoP). The burden of presentation and proof with regard to the facts from which the lack of validity of the patent is derived and other circumstances favourable to the invalidity or revocation lies with the opponent (Art. 54 UPCA). 

IPPT20240408, UPC CFI, LD Milan, PMA v AWM
No access to written report and any other outcome of the measures to inspect premises and to preserve evidence and revocation of the measures to preserve evidence because applicant did not timely start proceedings on the merits (Article 60(9) UPCA, Rule 198 RoP, Rule 9(4) RoP). Restitution of all evidence gathered through the execution of the revoked measures is to take place from 05.06.2024 on, unless the Court of Appeal decides otherwise (Article 74 UPCA, Rule 223 RoP). It is quite clear that an appeal could not be effective if this Court’s order for the return of the evidence gathered were given immediate effect. Damages claim dismissed (Article 60(9) UPCA, Article 54 UPCA, Rule 198(2) RoP). AWM and Schnell failed to allege, identify, and prove what concrete damage would have been caused by the enforcement of the measures, resulting in the dismissal of the claim, since – as provided for in Art. 54 UPCA – the burden of the proof of facts lies with the party relying on those facts.