Key takeaways
Legal persons are, as a rule, always “concerned” within the meaning of Art. 47.6 UPCA when bringing a revocation action.
The concept of being concerned by a patent, as laid down in Article 47(6) UPCA for revocation actions, is to be interpreted broadly. A distinction must be drawn between private and commercial acts, as Article 27(a) UPCA makes clear. Since legal persons cannot act “privately”, their acts must always be classified as commercial. As a general rule, legal persons are always to be regarded as being “concerned” within the meaning of Article 47(6) UPCA. They have, as a matter of principle, an interest in ensuring that patents which should not have been granted because a ground for revocation exists are not maintained. This applies irrespective of whether they are already active in a relevant industry.
Art. 47.6 UPCA applies as a general/residual provision to revocation actions and is not displaced by Art. 65.1 UPCA as lex specialis.
The subject-matter of a revocation action is determined not only by the invoked grounds under Art. 138(1) EPC, but also by the specific prior art documents and arguments relied upon.
This follows from Art. 76.1 and 76.2 UPCA, which confine the court’s decision to what has been requested and argued, since the UPCA provides for no ex officio investigation (unlike, e.g., Art. 114 EPC).
As a result, a parallel revocation action based on different prior art will generally not be barred by lis pendens, even where the same patent and parties are involved.
A minority shareholding of a claimant’s authorized representative does not, without more, disqualify that representative under Art. 48 UPCA.
Applying the lex societatis (here German company law) under Art. 24.1(e) UPCA, a 40% shareholding cannot secure majority control and therefore does not confer the administrative or financial dominance required to bar representation.
Division
Central Division Milan
UPC number
UPC_CFI_860/2025
Type of proceedings
Central Revocation action
Parties
Claimant: LS9 GmbH
Defendant: Bellissa HAAS GmbH
Patent(s)
EP 2 223 589
Jurisdictions
Germany, Austria, Luxembourg
Body of legislation / Rules
Art. 47.6 UPCA, Art. 27(a) UPCA, Art. 65.1 UPCA, Art. 76.1, 76.2 UPCA, Art. 33.4 UPCA, Art. 48 UPCA, Art. 24.1(e) UPCA, Art. 31 UPCA, Art. 69.1, 69.2 UPCA
