2024-09-06 - LD Düsseldorf - Novartis et al. v. Celltrion - UPC_CFI_165/2024

1. Art. 25 UPCA constitutes uniform substantive law and Art. 62 (1) UPCA uniform procedural law, which takes precedence over national patent laws and whose content is to be interpreted independently by the Court. 2. A situation of imminent infringement may be characterised by certain circumstances which suggest that the infringement has not yet occurred, but that the potential infringer has already set the stage for it to occur. The infringement is only a matter of starting the action. The preparations for it have been fully completed. These circumstances must be assessed on a case by case basis. 3. Companies that are members of a group and play a key role in a distribution network for the infringing product – such as a sole manufacturer or a European sales and marketing hub – may also be considered as infringers if they are located outside the Contracting Member States but supply their products to other members of the group located in the Contracting Member States, while these companies distribute these products on the European market, including at least one Contracting Member State where the patent in suit is valid. 4. Rule R. 295 RoP (stay of proceedings) refers to actions and is therefore not applicable to applications for provisional measures. 5. The interpretation of the patent is not only mandatory for the Court, but also for the parties, who must submit their views on their proposed interpretation in their briefs. 6. It is the task of the parties to present technical arguments to the Court in a concentrated and comprehensible form. In particular, the technical argumentation must be focused and precise for the Court in order to be able to comply with the ambitious time limits set by the law. This is even more true in PI proceedings.

The Düsseldorf Local Division dismissed the application for provisional measures due to a lack of imminent infringement, partially denying its competence regarding the majority of defendants. (One of two parallel decisions, UPC_CFI_165/2024 and UPC_CFI_166/2024)