Key takeaways
A preliminary objection may relate to a part of an infringement action only
Defendants’ objection to the UPC’s jurisdiction over acts commited prior to the start of the UPC is admissible.
Possible UPC jurisdiction on infringing actions solely occurred before June 1, 2023
Defendant states in its preliminary objection that one attacked embodiment was only produced and sold before June 1, 2023, before the start of the UPC, and therefore the UPC should have no jurisdiction as there is no retroactive effect of the UPC competence.
In the preliminary opinion of the judge rapporteur, the UPC is competent despite the Defendant’s statement. According to Art. 32(1)(a) UPCA, in connection with Art. 2(g) and Art. 3(c) UPCA, the UPC has exclusive competence over claims for actual or threatened infringement of a European patent that has not yet lapsed at the time of entry into force of the UPCA. Consequently, the UPC´s competence covers also infringing acts committed solely before the UPCA’s entry into force.
The final decison on the preliminary objection will be dealt with in the main proceedings.
Division
LD Munich
UPC number
UPC_CFI_846/2024
Type of proceedings
Infringement action
Parties
Claimant: Promosome LLC
Defendants: BioNTech SE; BioNTech Manufacturing GmbH; BioNTech Innovative Manufacturing Services GmbH; BioNTech Europe GmbH; Pfizer Manufacturing Belgium NV; Pfizer SAS; Pfizer AB; Pfizer, Inc.
Patent(s)
EP 2 401 365
Body of legislation / Rules
R. 19 RoP, Art. 3 (c) UPCA, Art. 2 (g), Art. 32(1)(a) UPCA
