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UPC monthly report 04/2024

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Summary of the UPC month

11 months into the UPC and the Court of First Instance has received a total number of 341 cases.

English is for the first time UPC language number 1.

This case load is impressive, in particular if one were to add the 33 appeals which were already filed with the Court of Appeals. No crystal ball is needed: 12 months into the UPC and the sonic barrier of 400 cases will be broken!

Out of these 341 cases pending with the Court of First Instance,

  • 123 relate to infringement actions and
  • 24 to applications for provisional measures (= preliminary injunctions).

This means that interim relief is sought in almost every fifth infringement matter, a share that is likely higher than in any other continental European national litigation system, and certainly very much higher if compared to common law patent litigation venues, like the UK or the US. The UPC case law on the test for granting interim relief (which can be summarized as “more likely than not”) is certainly fueling this development. For infringement matters, the Local Divisions call the shots when it comes to venue selection (and German Local Divisions maintain a share of over 75%).

However, since last month the first infringement action is pending before the Central Division in Paris. Two declaratory judgement actions for non-infringement are currently also pending in this venue, since the Central Division enjoys the exclusive competence for these types of actions. They bear however the disadvantage that a stay of proceedings is mandatory if an infringement action is started between the same parties (or between the holder of an exclusive license and the party requesting a declaration of non-infringement) relating to the same patent before a local or regional division within three months of the date on which the action was initiated before the Central Division.

Key decisions in a nutshell

The key decisions of the month are dealing with:

(1) The request to change a language of proceedings into the language of the patent
The request to change the language of the proceedings in the language of the patent is to be decided on a balancing of interests, whereby the position of the defendant ultimately prevails.

(2) The attempt to use preliminary objections for obtaining a stay of the infringement action
The Preliminary Objection and the appeal against its rejection do not alter the schedule as provided for by the UPCA and the RoP. The deadline-regime provided by the RoP was established also in view of parties having to deal with Preliminary Objections.

(3) The derogation from Rule 9.4 stipulating non-extendable deadlines
Rule 9.4 provides for mandatory time periods (e.g. like the lodging of an appeal) that cannot be extended. However, an excusable error can, in exceptional circumstances, justify a derogation from that rule. That is in particular the case when it was the conduct of the court, either alone or to a decisive extent, that gave rise to confusion by a party.

Remarks

In light of the case load of the UPC and in order to pave the way for the future success of the new system, the UPC Administrative Committee took the right decision and finally bolstered the UPC’s human resources as of June 1, 2024. The UPC Local Division in Munich will receive a second panel and at least some UPC judges will receive the necessary adjustments to the working time of their part-time assignments. Also, additional legally qualified judges were appointed and the appointment of judges for the Milan central division will be next.


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  • Tobias Wuttke

    Attorney-at-Law (Rechtsanwalt), Certified IP lawyer, UPC Representative, Partner

  • Tilman Müller-Stoy

    Attorney-at-Law (Rechtsanwalt), Certified IP lawyer, Commercial Mediator (MuCDR), UPC Representative, Partner

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