Summary of the UPC month
At the Court of First Instance, a total number of 538 cases is now pending, with the Munich and Düsseldorf Local Divisions increasing their lead.
In sum, there are only 6 Local Divisions which attracted more than 10 cases (Munich, Düsseldorf, Mannheim, Hamburg, Paris and The Hague).
German Local Divisions maintain their edge with a market share of close to 80%.
Furthermore, it is striking that the number of applications for preliminary measures is firmly above 20% compared to the number of infringement actions on the merits.
In October, the UPC saw its first applications for a cost decision, which will be very important practically.
The number of appeals against final decisions increased by 35%, while there were no new appeals against orders for provisional measures.
Turning to technical fields, IPC class A (human necessities) stood out as the one having more standalone revocation actions than counterclaims for revocation over the last months, the latter only catching up now.
Key decisions in a nutshell
The key decisions of the month are dealing with:
(1) Claim construction
Patents are mostly standing on the shoulders of giants, i.e. prior art. According to the LD Düsseldorf, however, that does not mean that prior art is always decisive for claim construction. Nevertheless, if the description itself distinguishes the claimed subject-matter over the prior art, such distinction must be taken into account for claim construction (assuming that the patentee does not want to patent the prior art). As regards the significance of the drawings, the LD points out a governing principle of patent law that the scope of protection is generally not limited by drawings which only illustrate a preferred embodiment of the claimed subject-matter.
(2) Validity test for preliminary injunction proceedings
In answering the question of whether the patent in suit is more likely to be invalid than not, no conclusions can be drawn from the general revocation rates of patents. Only the patent in suit is relevant.
(3) Liability of directors
A company, accused of patent infringement cannot be considered a “third party” in relation to its directors within the meaning of Art. 63 UPCA. As a consequence, the Court of Appeal takes the view that the company’s (= defendant’s) directors cannot be an “intermediary” whose services are being used by a third party to infringe a patent in the sense of Art 63 UPCA.
Remarks
The global patent community keeps believing in the UPC. The UPC maintains its momentum (monthly increase of 10-20 new cases filed) and continues to attract cases from all over the world in all technical fields.
The decisions remain high quality. However, in light of the fact that most UPC judges still only have part-time assignments the Administrative Committee must invest in further human resources.
The question is no longer whether the UPC can walk, but how long can the UPC walk on part-time crutches.
