Summary of the UPC month
Happy Birthday UPC! The UPC’s first year was – statistically speaking – filled with just over one new case per day: a total number of 373 cases is now pending.
In addition, more than 10 infringement actions were filed per month, leading now to a total of 134 infringement actions.
If one adds the number of requests for preliminary measures (= preliminary injunction proceedings) and central revocation actions (= invalidity actions), the UPC has attracted more than 200 separate cases in its first year.
This figure is much higher than anticipated by the UPC itself. In the last month, it was in particular the Court of Appeal that was getting busier and busier in May: Appeals under R. 220.2 RoP more than doubled from 19 to 47 cases.
Regarding procedural languages, English is on the verge of becoming the predominant one, just reaching the 50% mark with German still following closely, having a share of 45%.
Key decisions in a nutshell
The key decisions of the month are dealing with:
(1) File wrapper estoppel
The CoA left open the question of a file wrapper estoppel before the UPC since, in its opinion, the documents presented from the examination proceedings in that case did not lead to any other result than an interpretation of the claims in the light of the description and the figures. The Court of first instance (Local Division Munich) had referred to these same documents as being relevant to the decision and had used the claim history as a means of claim construction.
(2) Security for costs in proceedings for provisional measures
In proceedings for provisional measures, the defendant can request the provision of an adequate security under R. 158.1 RoP based on the risk of insolvency of the applicant. This holds particularly true if the applicant has no known assets and a very low registered capital. Additionally, a very recent transfer of patent has to be considered – especially if the applicant was already active in the matter beforehand – giving rise to the concern that the transfer has the (sole) purpose of eliminating financial risk for the applicant.
(3) The stay of revocation proceedings
If there are opposition proceedings pending before the EPO, the UPC will only stay revocation proceedings if a rapid decision by the EPO is to be expected. The grant of a request for the acceleration of the opposition proceedings alone does not constitute the assumption of a rapid decision within the meaning of R. 295(a) RoP. Generally, whichever decision revokes the patent takes precedence over the decision that upholds it.
Remarks
The end of the first UPC year marks also the transition to the beginning of its second year. The next months will be of utmost importance for the new system, since the first oral hearings in both, infringement and central revocation actions, will be held. Thus, the first judgements will be out very soon (the first decision in a UPC infringement action is announced for July 5, 2024) and the UPC’s body of case law will eventually start to really develop.
