2026-09-23 - LD Brussels - 2seventy bio v. Janssen-Cilag et al. - UPC-CFI-0000029/2026

1. The RoP do not allow “aggressive interventions” or “principal interventions” (i.e. interventions whereby the intervener directs claims against one or more of the other parties different to one it supports). 2. A party can be held intervener in the infringement action (and be “treated as a party”) and defendant in the counterclaim for revocation. The introduction of a counterclaim for revocation will reclassify the status of intervener (patent holder) to defendant, but will not imply the reclassification of the status of this intervener (patent holder) to co-claimant in the infringement proceedings. 3. The managerial powers of the Court in application of R. 305 RoP and R. 315 RoP to reclassify (on its own motion or upon application thereto) the status of party from intervener to co-claimant (or co-defendant) depends on the circumstances of the case. 4. A “request to invite a party to introduce an application” is not a proper procedural request. Whether or not an actual application is introduced, should not be based on an invitation by the Court but depends on the applicant’s own procedural strategy. Whether such an application would be admissible or not needs to be assessed by the Court once the application has actually been introduced. 5. The term “for the purpose of the proceedings” in R. 8.4 RoP applies only for the application of the RoP and more specifically the administrative tasks to be performed by the Court. For this purpose a legal fiction is created. On the other hand, this legal fiction is held not to apply for questions of substantive law and therefore, in an action for which the UPC is competent, a defendant has the right to bring a defence comprising the issue of entitlement. The presumption of entitlement created in R. 8.4 RoP regarding substantive law is rebuttable. 6. When assessing an application to produce evidence, the Court should assess the plausibility of the underlying claims at that stage of the proceedings. The assessment on this plausibility does not affect the assessment of the panel when having to decide the claims on the merits. 7. The condition of "prior notice" in Article 47(2) or (3) UPCA should be assessed by the Court when the action is brought, specifically on the date on which the action in application of R. 17.1 RoP is recorded in the register (i.e. after the Registry's formal examination of the Statement of Claim (R. 16 RoP with an explicit reference in R. 16.2 RoP to RoP to R. 13.1(f) RoP). The burden of proof of complying with this condition lies solely on the claimant. However, although the Court should position itself on the moment the action is brought, the claimant is still allowed to introduce additional evidence in support of the already introduced evidence in application of R. 13.1(f) RoP.

The Brussels Local Division dismissed two applications under R. 190 RoP by which the defendants sought documents from the intervening patent proprietor to support their challenge to the exclusive licensee's standing, and dismissed the proprietor's request to be reclassified from intervener to co-claimant. The Court held that the RoP admit only interventions in support of a party, and that a proprietor may be an intervener in the infringement action and at the same time the defendant in an unconditional counterclaim for revocation, with no automatic reclassification under R. 305 or R. 315 RoP. Departing from LD Munich (Häfele) and LD The Hague (Cilag v RiVOLUTiON), it held that the presumption in R. 8.4 RoP operates only 'for the purposes of proceedings' and does not bar a defence contesting entitlement, but found the defendants' entitlement challenge not plausible at this stage. The prior-notice condition of Art. 47(2)/(3) UPCA is assessed at the date the action is recorded in the register, with the burden on the licensee, so the defendants had no need to obtain that evidence themselves.