2025-04-04 - LD Munich - Edwards Lifesciences v. Meril - UPC_CFI_501/2023

1. Art. 33(1)(b) UPCA allows multiple defendants to be sued at the domicile, principal place of business or, failing that, at the place of business of one of the defendants, provided that the defendants have a commercial relationship, and the action concerns the same alleged infringement. In the context of a European patent without unitary effect, the term "the same infringement" addresses situations where multiple defendants are accused of infringing the relevant national designations of the same European patent by the same product or process. Another interpretation would undermine the purpose of the Agreement on a Unified Patent Court to overcome the fragmented patent litigation landscape in Europe (preamble 2 of the UPCA). 2. For assessing whether an invention shall be considered obvious having regard to the state of the art, the problem-solution approach developed by the European Patent Office shall primarily be applied as a tool to the extent feasible to enhance legal certainty and further align the jurisprudence of the Unified Patent Court with the jurisprudence of the European Patent Office and the Boards of Appeal. 3. A cease-and-desist declaration without a penalty clause by one or two but not all defendants being members of a group of companies jointly infringing a patent cannot secure the patentee's interest in defending the exclusive nature of its right in the same way as a court order. The risk remains that the members of the group will re-organise their business around such isolated cease-and-desist declarations and thus continue to infringe the patent in the relevant territories without the risk of having to pay a penalty. 4. If a decision is immediately and directly enforceable from the date of service in each of the Contracting Member States pursuant to Rule 354.1 RoP no security must be lodged beforehand and there is no condition under Rule 118.2.a RoP. However, Rule 118.8 RoP must be complied with.

The Munich Local Division granted an infringement action and dismissed the preliminary objection as well as the counterclaim for revocation, declaring the decision to be immediately enforceable without the requirement of a security. [More to follow]