Summary of the UPC month
It is fair to say that the UPC is continuing to build more and more momentum.
- We see a 17% increase in infringement actions compared to last month.
- Preliminary injunctions are up by as much as 29%.
This is no surprise in light of the test for obtaining interim relief which has now been established by the UPC Court of Appeal. This test can be summarized as “more likely than not”, and is applicable to all major case elements like standing, infringement and validity.
- The footprint of the German Local Divisions remains strong and their share of total UPC traffic remains at close to 80% (Munich alone with a share of over 40%).
- The same is true for the language of proceedings where German remains prevalent (47%), closely followed by English (45%).
However, more and more attempts by defendants can be seen to reverse the plaintiff’s choice by requesting a change of the language of the proceedings. Such requests are however bound to fail if not properly substantiated. Merely alleging that the defendant is an SME (= small and medium size enterprise) has not been deemed to be sufficient by case law.
Last but not least, the UPC continues to attract cases from around the world and all types of technologies (in particular, life sciences and pharma do not shy away from the UPC). However, it does not come as a surprise that high tech cases in telecoms, audio/video-coding and semiconductor technology are leading with a share of 50% of all UPC cases and that the number of SEP cases is continuously increasing.
Key decisions in a nutshell
The key decisions of the month deal with important topics that are pivotal for almost every UPC campaign, namely:
(1) the test for granting interim relief
A sufficient degree of certainty pursuant to R. 211.2 RoP, in conjunction with Art. 62(4) UPCA for granting interim relief requires that the UPC considers it at least more likely than not on the balance of probabilities that the patent is infringed and valid.
(2) admissibility of auxiliary requests
Amendments to the patent in suit (= auxiliary requests) must be filed as early as possible. Any subsequent request to amend the patent may only be admitted to the proceedings with the permission of the court.
(3) referral of a counterclaim for revocation from a Local to the Central Division of the UPC where a central revocation action is already pending
A counterclaim for revocation will be dealt with by the Central Division if the parallel central revocation has been filed earlier and is considerably more advanced. In addition, the parties must be “on the same page” with regard to the grounds for revocation, arguments, facts and evidence involved in both proceedings.
Remarks
The UPC community is eagerly awaiting the upgrade of the present UPC judges from part-time to full-time assignments. Especially for the Munich Local Division, an improvement of the current workload situation is critical. Another option would be to open a second panel, or just doing both. Either way, the UPC Administrative Committee should make a swift decision.
