Key takeaways
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 enforcement interest.
Stays under Art. 33(10) UPCA pending parallel EPO oppositions are discretionary. If no stay was requested at first instance, the court has no duty to give reasons for not staying ex officio.
A non-final EPO revocation is no ground for a stay if the Local Division already considered the EPO’s preliminary view and affirmed validity. An ex officio stay under R. 118.2(b) RoP requires the UPC panel itself to foresee a high probability of final revocation.
Scope of review: Software-Browser interaction (Art. 76(1), (2), 26 UPCA; R. 171.2 RoP)
Assessing uncontested interactions between the software and the operating system/browser does not overstep the subject matter of the dispute (Art. 76(1) UPCA). Where indirect infringement is alleged, the relevant factual basis is whether the software equips the user’s system to perform the method, not the exact software component initially cited by the patentee.
Facts pleaded by the defendant and uncontested are deemed admitted under R. 171.2 RoP. Prudent counsel must anticipate that the court will evaluate whether software and browser together fulfill the claim; Art. 76(2) UPCA requires no advance judicial hint for foreseeable legal evaluations.
Pleading and contesting infringement across product variants (R. 171, 171.2 RoP)
A claimant conclusively pleads infringement across multiple product variants by detailing infringement for a core embodiment and asserting functional identity in all material features. This does not constitute an impermissible fishing expedition.
A simple blanket denial of functional identity suffices for the defendant to shift the burden of substantiation and proof back to the claimant; no proactive disclosure of technical differences across variants is required. If the defendant fails to enter even a blanket denial, functional identity is deemed admitted under R. 171.2 RoP, allowing the court to extend the injunction across all variants without further taking of evidence.
Division
CoA Luxembourg
UPC number
UPC-CoA-176/2026,
UPC-CoA-177/2026
Type of proceedings
Application for suspensive effect in infringement and counterclaim for revocation proceedings
Parties
Netflix Services Germany GmbH, Netflix International B.V., Netflix Services Italy S.R.L., Netflix Services France S.A.S., Netflix Inc. (Appellants – Defendants/Counterclaimants);
DivX, LLC (Respondent – Claimant/Counter-Defendant)
Patent
EP 4 213 033
Jurisdictions
UPC
Body of legislation / Rules
Rule 118.2(b), 171.2, 223 RoP, Art. 33(10), 74(1), 76(1), 76(2) UPCA
