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Preliminary objection concerning the competence of the Central Division because of a pending action before the Munich Local Division rejected: Meril Italia is not the same party a Meril India or Meril Germany (article 33(4)UPCA, Rule 20 RoP). Preliminary requests to postpone the hearing on Preliminary objection and to exclude exhibits rejected (Rule 20 RoP).
Valid date of service of statement of claim with Annexes (Rule 271 RoP). A Statement of claim, even if it refers to or announces the later submission of Annexes, can be validly served on a defendant, provided that the Statement of claim without the Annexes enables the defendant to assert its rights in legal proceedings before the courts of the UPC. A Statement of claim must therefore at least state with certainty the subject matter and cause of action. Extension of terms for Preliminary objections and Statement of defense because of unavailability of Annexes (Rules 13, 19 and 23 RoP).
IPPT20230920, UPC CFI, CD Munich, Sanofi-Aventis v Amgen
Availability of written pleadings and evidence to the public requires a legitimate reason. Rule 262(1)(b) RoP requires a concrete, verifiable and legally relevant reason, i.e. more than just any (fictitious) reason. In other words: a legitimate reason is required for making available written pleadings and evidence to a member of the public. Otherwise, this provision and the distinction made would seem to be moot and without substance. The mere “wish” from a natural person to form “an opinion” on the validity of a patent out of a “personal and a professional interest” cannot be accepted as a sufficiently concrete, legitimate reason to make available all pleadings and evidence in this case.
Provisional measure (article 62 UPCA, Rule 211 RoP). Sufficient degree of certainty that the patent is valid. Prevailing likelihood (“überwiegende Wahrscheinlichkeit”) – more likely than not – is required and sufficient. No unreasonable delay in seeking provisional measures. Interests of and potential harm for either of the parties. The Local Board considers that the interest of the right holder in not having his rights infringed outweighs the interest of the potential infringer in securing market shares now through the continuation of the infringement, which he can no longer obtain later through a possible licence agreement. The damage potentially suffered by the applicants as a result of a continuation of the infringing acts by the defendants is also difficult to compensate financially, as the acquisition transactions have a long-term effect; their reversal is much more difficult for the applicants than for the defendants who are contractually involved in these transactions.
IPPT20230828, UPC CFI, LD Helsinki, AIM Sport Vision v Supponor
Procedural order in main proceedings and provisional measures proceedings concerning issues to be addressed in written submissions, invitation to an oral hearing in front of the whole panel, including a technically qualified judge and instructions regarding oral hearing.
Rule 9 RoP: An intended harmonisation of the time-limit regime as such does not constitute a reason for an extension of the time-limit that runs for the opponent who was successfully served at an earlier point in time. Rather, harmonisation can also be achieved by shortening the time limit for the opponent who was only served at a later point in time. Working with the new procedural law and the CMS poses considerable challenges for all parties involved. Therefore, in the initial period, a practicable handling of the challenges that arise is required. The judge-rapporteur therefore exercises the discretion granted by the Rules of Procedure to grant the request by way of exception. Moreover, the defendant (= applicant) has agreed to the request for an extension of time.
Rule 9 RoP: No convincing reasons for extending three months time period for lodging statement of defence. The time limit for filing oppositions under Rule 23 of the Rules of Procedure is already calculated in such a way that, for international patent disputes falling within the jurisdiction of the Unified Patent Court, it allows for a clarification of the facts and an internal coordination of the proceedings and internal coordination, even during holiday periods. Moreover, in the present case, the time limit for filing the statement of opposition already amounts to three months and six days for the first defendant and three months and eight days for the second defendant without the requested extension of the time limit due to the calculation of the time limit pursuant to Rule 271.6(b) in conjunction with 271.4(a) of the Rules of Procedure. Reference is made to the calculation of the time limit communicated by the judge-rapporteur in his order of 10 August 2023. The fact that certain central contact persons at the defendants and the suppliers could not be reached during the vast majority of the deadline period due to holidays is neither apparent nor asserted by the defendants.
IPPT20230814, UPC CFI, LD Munich, Edwards Lifesciences v Meril
Successful service under Rule 271.1.c of the Rules of Procedure on one of several defendants also constitutes, in the circumstances of the main proceedings, effective alternative service on another defendant under Rule 275.2 of the Rules of Procedure.
The prevention of a divergence of the deadlines for lodging a preliminary objection (Rule 19) is not necessary per se. On the one hand, an extension of the opposition period is not necessarily accompanied by an extension of the time limit for filing a statement of defence. This is because, as Rule 19.6 shows, the running of the time limit for filing a statement of opposition is not even affected by the filing of the statement of opposition, unless the reporter decides otherwise. Secondly, the opposition alone concerns the issues of the jurisdiction of the court, the use of the exception under Rule 5 of the Rules of Procedure, the jurisdiction of the Chamber and the language of the proceedings. These issues per se can be answered quickly and also differently for different defendants. Furthermore, a legal interest of the other party to have certainty on these issues, also in relation to individual defendants, as soon as possible must also be recognised. However, it should be noted that working with the new procedural law and case management system (CMS) poses significant challenges to all parties involved. Therefore, a practicable handling of the challenges that arise is required in the initial period. The Rapporteur therefore exercises the discretion granted by the Rules of Procedure to grant the application by way of exception.
Rule 7 RoP decision: No need to submit Dutch translations of English documents. The [foreign] defendant has not yet appeared, but one cannot see that it could have any interest in a Dutch translation. The request is therefore granted: there is no need to file translations of English-language documents.
Unsuccessful application for rectification under Rule 353 of order so as to include Austria in the countries covered by provisional injunction. Application admissible under Rule 353. Obiter dictum: Since Rule 353 only allows for purely formal corrections without an examination of the substance of the matter, it is not necessary for the panel to decide in the same composition as when the order was issued. No obvious inaccuracy. Obvious inaccuracies includes all incorrect or incomplete statements of what the court actually intended in the order or decision. The declaration of the judicial intention in the decision or order must deviate from the intention present when the decision was made. Order for provision measures was issued on the basis of the application where in the auxiliary request Austria was not explicitly mentioned. The fact that the more general main request, seeks the grant of an interim injunction in respect of all member states of the Unified Patent Court in which the patent for invalidity is in force does not give rise to a different assessment, as the applicant only deals with Germany, the Netherlands, France and Italy in connection with the justification of an act of infringement. Conflict with the territorial scope provided in article 34 UPC Agreement does not justify a rectification under Rule 353.
IPPT20230629, UPC CFI, CD Munich, Sanofi-Aventis v Amgen
Deemed day of service on the Defendant ((Rule 271 and Rule 49 Rules of Procedure). Application to file exhibits to statement of claim granted. In view of the access to the case that Defendant obtained on today’s date and the exhibits becoming available to the Defendant also today, the Court would like to clarify that the Statement of revocation is deemed to be served on the Defendant today, i.e. on 29 June 2023.
Ex parte provisional injunction regarding Germany, the Netherlands, France and/or Italy and seizure of goods suspected of infringement.(article 62 and 29 UPC Agreement, Rules 206, 207, 209, 211 and 212 Rules of Procedure). Direct and literal infringement of the patent by the contested embodiment not substantially disputed in the protective letter. No exhaustion because respondent is not licensed to create from components supplied by Fairy Bike a combination falling within the scope of protection of the patent. Urgency of the action due to the already running leading European trade fair "Euro Bike 2023" and no earlier knowledge of detailed technical design of contested embodiment evident. Only provisional award of court costs, since the applicant did not explain in detail the amount of its costs quantified at EUR 16.000. Provisional measures granted without hearing the defendant because of likelihood of irreparable harm. It is obvious that the exhibition of the contested embodiment at this trade fair can lead to a hardly reversible loss of sales or market shares of the applicant. The products of both parties are substitutable, direct competitors.
For right of information of article 8 of the Enforcement Directive, the applicant must show he is actually the holder of the IP right in question. Applicant must provide any reasonably available evidence enabling the court to satisfy itself with a sufficient degree of certainty that the applicant is the rightholder. It will be for the referring court to assess the justification for and proportionality of the request for information before it and to ascertain that the applicant in the main proceedings has not abused that request.
International jurisdiction. Criterion ‘in the courts of the Member State in which the act of infringement has been committed or threatened’ requires active conduct. Active conduct with a sufficient connecting factor with the Member State of which the public is targeted when an undertaking pays the operator of a search engine website with a national top-level domain of a Member State other than that in which it is established, in order to display, for the public of that Member State, a link to that undertaking’s website, thereby enabling a specifically targeted public to access its product offering.
[G 2/21]. Plausibility technical effect. Plausibility does not amount to a distinctive legal concept or a specific patent law requirement under the EPC. Evidence of technical effect may not be disregarded solely on the ground that such evidence, on which the effect rests, had not been public before the filing date of the patent in suit and was filed after that date. The relied upon technical effect for inventive step needs to be encompassed by the technical teaching of the claimed invention at the filing date and to embody the same invention.