Summary of the UPC month
When analyzing the UPC filing statistics of February 2024, two things become readily apparent:
1) New infringement actions and application for provisional measures (= preliminary injunctions) are coming in on a regular basis and a total of 274 cases are pending. The Munich Local Division is expanding its lead position. Currently, 36 infringement actions and 11 preliminary injunction proceedings are pending in Munich. This is tantamount to an overall share of 42% for these types of proceedings (the overall share of the German Local Divisions is 77%).
Insofar it is worthwhile to mention that the Munich Local Division bolstered its back office and a total of 5 clerks are working there from March 2024 onwards. The importance of a strong back office – in particular when it comes to the process of service abroad – can not be overrated.
2) We observe a certain standstill when it comes to central revocation actions. This is interesting given the UPC’s case law on Art 46 UPCA which allows for the filing of a central revocation action by a party that is affiliated to the defendant of the infringement action who already filed a counterclaim for revocation against the same patent.
Key decisions in a nutshell
The key decisions of the month all relate to important procedural topics of
(1) extension of deadlines
The extension of a deadline happens very rarely in practice. A respective request must be filed in good faith honoring the principle of a fair trial. This means that filing such a request on the last day of the expiring deadline generally runs foul of the fair trial principle.
(2) requests for confidentiality
Protection of allegedly confidential information requires the filing of an unredacted version of the document in question together with the formal application to protect confidential information.
(3) process of service
Alternative methods of service can only be used and ordered by the UPC if an actual (“real”) attempt of regular service failed. It is however still open what circumstances qualify as actual failure.
Remarks
The Case Management System continues to be cumbersome for all users, but huge efforts are made to improve the situation. The first positive results of these efforts are noticeable (e.g. the Teams function).