Summary of the UPC month
Time to celebrate: the 500-case mark has been reached!
Now that final decisions from the Court of First Instance are coming in, the Court of Appeal also naturally saw a 100% increase in appeals under R. 220 (1) lit. a) RoP.
The growth rate of new incoming UPC infringement actions is stable (around 10-15 cases per month).
The same does also apply to new incoming applications for provisional measures.
Furthermore, the second pillar of the UPC alongside the courts for litigation proceedings – the Patent Mediation and Arbitration Centre (PMAC) – is gaining momentum and appointed a director (Aleš Zalar) in September.
However, the doors of PMAC are not yet open – rumor has it that this will only happen in the second half of 2025.
Key decisions in a nutshell
The key decisions of the month are dealing with:
(1) Conflict of jurisdictions
Following diverging decisions by the Local Divisions, the CoA has confirmed the applicability of Art. 29 to 32 Brussels I recast Regulation even if the proceedings before a national court were initiated prior to the transitional period. In consequence, the CoA ordered the stay of the respective revocation proceedings before the UPC until the German Federal Court of Justice has given a final decision.
(2) Conflict of laws
After a decision of the Higher Regional Court Karlsruhe on the (in-)applicability of the UPCA in national infringement proceedings based on a European bundle patent (see our IP Report from 02 May 2024), the LD Düsseldorf now decided on the opposite situation and held that before the UPC, the UPCA’s uniform substantive and procedural law takes precedence over national law concerning infringement.
(3) Actions manifestly bound to fail
For a dismissal of an action as manifestly inadmissible by way of order under R. 361 RoP the inadmissibility must be clearly evident from the pleadings without any particular in-depth analysis. As an example, the Central Division Paris cites the failure to meet a peremptory deadline but does not consider legal objections without supporting established (UPC) case law to be sufficient.
Remarks
When looking at the UPC’s substantive decisions which are coming out it becomes clear that “Think UPC” continues to be the guiding theme.
This holds true for both the enforcement of European Bundle Patents and European Patents with Unitary Effect. Whenever possible, the UPC entertains an autonomous interpretation of landmark patent law questions like direct vs indirect infringement, risk for imminent infringement, liability of directors and so on.
National law comes only second whereas shaping a new body of UPC case law takes center stage.
