2026-05-06 - LD Lisbon - ASUS v. Ericsson - UPC_CFI_539/2025

ENGLISH: 1. Where an infringement action is filed in respect of acts occurring prior to the expiry of the patent and the possibility of claiming retroactive damages is at issue, the defendant has a legal interest in filing a counterclaim to revoke that patent, even if it has already expired. That legal interest arises from the infringement action brought by the claimant, since, under Article 47(6) of the UPCA, any person affected by a patent may bring an action in accordance with the Rules of Procedure. 2. The holder of a sub-domain is responsible for the content of the sub-domain as much as for the content of the main domain, either for offering or placing on the market the infringed products.

The Lisbon Local Division held that a defendant retains a legal interest in a counterclaim for revocation after the patent has expired, because the infringement action reaches acts before expiry and exposes it to retroactive damages (Art. 47(6) UPCA, Art. 65(4) UPCA). On the merits it found added matter in claim 1 as granted through an intermediate generalisation of the symmetry feature, but held that auxiliary request 1 cured the defect and was clear under Art. 84 EPC and R. 50.2 RoP, and it then rejected every novelty and inventive-step attack, holding in particular that a document from the antenna art is not a realistic starting point for an inductor on a semiconductor die. On infringement it applied the Court of Appeal's autonomous reading of "offer" in Belkin v Philips and held that the holder of a domain and its national sub-domains answers for the content of the sub-domains as it does for the main domain, expressly refusing to transpose the Court of Appeal's stricter rule on the personal liability of directors to an undertaking. It declared liability in damages, ordered a full Art. 67 UPCA account within ten weeks under penalty, and refused to suspend the decision pending appeal.