Summary of the UPC month
Although February is relatively short, the Court of First Instance received 19 new infringement actions during its course. For context, this was the second highest monthly figure since the inception of the UPC, which already points to new records for 2025. The total number of cases now reached 752.
In February, the UPC also published its first ever annual report, including statistics from June 2023 onwards as well as a selected collection of case law. The evolution of case numbers in 2024 shows two distinct peaks for infringement actions, one in June and one in December.
- US entities are leading as claimants in infringement actions (44 cases),
- followed by German parties (34 cases).
- The latter are the most frequent infringement defendants (156 cases),
- making them leader in counterclaims for revocation (120 cases) as well.
The statistics also show, that the UPC is quick:
- It only took about 405 days on average to close infringement main actions (first instance).
- Requests for provisional measures such as preliminary injunctions are being dealt with within about 96 days (first instance).
Key decisions in a nutshell
The key decisions of the month are dealing with:
(1) “Means-plus-function” features and their interpretation
“Means-plus-function” features cover any means (merely) suitable for carrying out the function (exceptions may apply to computer-implemented inventions). In the case at hand, a feature in the form of “X configured to be Y” was to be interpreted in the way that X “is suitable for” Y, therefore X didn’t need to be specifically adapted with respect to Y.
(2) Independence of UPC representatives
The CoA emphasizes the necessary independence of UPC representatives. As a consequence, corporate representatives of a legal person or other natural persons who have extensive administrative and financial powers within the legal person cannot serve as representatives of that legal person before the UPC. This, however, does not rule out representation by employees which do not fulfil these conditions and act independently towards the Court.
(3) Admissibility of infringement pleadings
In case a counterclaim for revocation is brought, the respective rejoinder as well as the reply to the defence against an application to amend the patent (and its respective rejoinder) are due after the conclusion of the exchange of infringement pleadings. Therefore, arguments on infringement are generally inadmissible in these stages unless a reasoned request under R. 36 RoP is made.
Remarks
February not only brought new UPC case law but also the CJEU’s long-awaited decision in BSH./.Electrolux (C-339/22). This decision moved the goal posts of global patent litigation. In principle, all known territorial boundaries of European patent litigation are virtually abolished. Both, the UPC and the EU national courts can from now on issue injunctions for non EU-States like the UK, provided that the defendant is sued at its domicile and provided that said domicile is in a UPC Member State/EU Member State. Theoretically, this long-arm jurisdiction even reaches beyond the great pond. But, there are quite a few important “buts” and the costs and complexity of making use of this new case law should by no means be underrated.
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