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CoA, November 2, 2026, order on suspensive effect, UPC_CoA_176/2026 & UPC_CoA_177/2026
No suspensive effect following non-final EPO revocation (Art. 74(1), 33(10) UPCA; R. 118.2(b), 223 RoP) : Appeals do not suspend enforcement under Art. 74(1) UPCA. Suspensive effect under R. 223 RoP requires exceptional circumstances, such as an evident error or futility. Compensable financial losses do not suffice, and the patent’s imminent expiry reinforces the patentee’s…
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LD Hamburg, November 4, 2026, decision on infringement and counterclaim for revocation, UPC_CFI_660/2025 & UPC_CFI_1326/2025
Scope of protection for features defined by physical properties (Art. 69 EPC, Art. 1 Interpretation Protocol): A claim feature described solely by physical properties covers only embodiments capable of performing the function the patent attributes to it. Claim 1 of the patent-in-suit defines the “non-conductive fluid” only by its immiscibility and its absence of significant…
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LD Duesseldorf, November 5, 2026, decision on infringement and counterclaim for revocation, UPC_CFI_466/2025 & UPC_CFI_869/2025
Strict proof of identity for prior public use (Art. 54 EPC): The party alleging prior public use bears the full burden of proving that all claimed features were publicly accessible without confidentiality prior to the priority date. A complete and verifiable chain of identity between the tested sample and the delivered product is mandatory. Unresolved…
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LD Brussels, August 17, 2026, Order on Admission of Auxiliary Request, UPC_CFI_806/2025, UPC_CFI_185/2026
An amendment to a party’s case cannot be allowed if it could have been foreseen from the outset of the proceedings (R. 263 RoP, R. 30.2 RoP): Granting leave to amend at a late stage would allow the applicant to change its litigation strategy after the fact. A diligent patentee should coordinate its EPO and…
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Court of Appeal, August 19, 2026, Decision, UPC-CoA-908/2025, UPC-CoA-909/2025, UPC-CoA-918/2025
New legal arguments raised on appeal are admissible under R. 222.2 RoP if grounded in facts already submitted before the Court of First Instance: R. 222.2 RoP only allows the Court of Appeal to disregard new facts and evidence, not new legal arguments. Since claim construction is a question of law, the appellant could challenge the first…
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LD Munich, August 17, 2026, Decision on Conditional Counterclaims for Revocation and Cost Allocation, UPC_CFI_492/2025, UPC_CFI_1309/2025
It is permissible to make a counterclaim for revocation conditional upon a finding of infringement of the patent: The court relied on the Court of Appeal’s Clarification order of 16 July 2026 (UPC_CoA_40/2026, Emboline v. AorticLab), confirming that the procedural approach of making the decision on the revocation counterclaim dependent on an infringement finding is…
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Court of Appeal, August 17, 2026, Order on Permissibility and Appeal of Conditional Counterclaims for Revocation, UPC-CoA-40/2026, UPC-CoA-123/2026
Infringement actions and revocation counterclaims are separate actions under Art. 32(1) UPCA, making a conditional counterclaim an “inter-procedural” condition that determines whether a separate appeal or a cross-appeal must be lodged: Since the infringement action and the counterclaim for revocation are adjudicated in separate proceedings, a condition linking the counterclaim to the outcome of the…
