2026-09-02 - CD Munich - Wittenstein v. Vestas Wind Systems - UPC_CFI_523/2025

1. The requirement in Art. 138(1)(e) of the European Patent Convention that a European patent may be revoked if the proprietor is not entitled under Art. 60(1) should be interpreted as meaning that the proprietor does not have any rights to the patent. The burden of presentation and proof for facts establishing that the proprietor is not entitled lies with the claimant. It is therefore not sufficient for this ground of revocation to be successful that a claimant demonstrates that it has rights to parts of the subject-matter disclosed in a patent, e.g. as a co-inventor or the co-inventor’s successor in title. 2. Dependent claims are part of the patent and may be used as fall-back positions in revocation actions. At least in a stand-alone revocation action, where no infringement claim has been brought and it is therefore not yet clear which claims a patent holder may decide to rely on for what purpose, a claimant therefore may have a legitimate interest in having the validity of dependent claims assessed, even if the independent claim is deemed valid. Although the Court is not generally required to take a decision regarding dependent claims in such a situation, it should at least have the discretion to do so if considered appropriate based on the circumstances of the case.

The Munich Central Division answered two questions that had not been settled. First, the entitlement ground in Art. 138(1)(e) EPC requires that the proprietor has no rights at all to the patent: a claimant that shows only rights to parts of the disclosed subject matter, as a co-inventor or a co-inventor's successor, does not make the ground succeed, and the burden of presentation and proof lies on it. Whether an unrelated third party may raise the ground at all was left open, because it suffices for invoking it that the claimant's own entitlement case is not prima facie implausible on a cursory review. On the facts the evidence pointed to the registered inventor being at least a co-inventor, so the ground failed. Second, although the Court of Appeal has held that dependent claims need not be decided where a counterclaim fails against the independent claim, dependent claims are part of the patent and may serve as fall-back positions; in a stand-alone revocation action, where no infringement claim shows which claims the proprietor will rely on, the claimant may have a legitimate interest in their assessment and the Court has a discretion to give it. Exercising that discretion, the Court found claims 21 and 22 insufficiently disclosed because they contradict claim 19, and maintained the patent under an auxiliary request deleting them.