The Hague Local Division (single judge) granted provisional measures for the UPC territory and Switzerland against a US manufacturer and its Dutch-domiciled online retailer. The Court took jurisdiction over the US defendant because its website directed European customers to third-party retailers through which test purchases were delivered, and extended the Swiss part of the claim against it through the Dutch anchor defendant on the risk of irreconcilable decisions. Urgency was met because the patentee has no general duty to monitor the market and time runs from actual knowledge. On the merits, the Court construed the purpose-limited use claim at the priority date (unaffected by a later taxonomic reclassification of the claimed organism, and not limited to the strain of an example), held that the claimed organism need only contribute meaningfully to the effect rather than achieve it alone, treated the TBA-upheld patent as presumptively valid, and found infringement more likely than not on the defendants' own marketing statements. Information on quantities was ordered at the provisional stage and the defendants' request for security for enforcement was refused.

In a joint order on two parallel applications for provisional measures between the same parties and against the same product, the Hague Local Division granted an injunction and an information order on one patent and dismissed the application on the other. Applying the NanoString 'more likely than not' standard under R. 211.2 RoP and Art. 62(4) UPCA, the Court found the first patent likely valid, holding that a claimed numerical range cannot be disregarded as arbitrary where the patent ties a technical effect to it, and found infringement on the basis of an unrebutted third-party test report, a counter-report measuring a different parameter being discarded. On the second patent, a 'sealing attachment' feature was construed as requiring a structural seal enveloping the inlets, which the applicant failed to show. The urgency objection failed because the applicant was entitled to wait for a test purchase from within the UPC territory and its full technical analysis before filing, and the request for security for enforcement was rejected as unsubstantiated.

The Munich Local Division decided an infringement action and a counterclaim for revocation on a unitary patent for a rapid-entry shoe. On claim construction it held that the binding nature of the claim under Art. 69(1) EPC bars reading an unwritten limiting feature into the claim where description and drawings give no clear indication of it, and that the Court is not bound by the parties' constructions because construction is a matter of law. Claim 1 as granted was anticipated, but the patent was maintained as limited by an auxiliary request: the added-matter and sufficiency attacks failed, and the inventive-step attacks failed because the counterclaimants did not plead a pointer or motivation from any starting point, which in light of Arts. 42, 54 and 76(2) UPCA the Court will not supply itself. Only one of four accused models infringed; for the others the functional feature was not shown under the practical forces of foot entry. The Court ordered injunction, information with supporting invoices, corrective measures and damages liability, made the corrective measures enforceable only against a EUR 5m security because of the limitation, the pending EPO opposition and the mixed infringement result, refused provisional damages and publication, and ordered each party to bear its own costs.

Like Panel 1 of the Düsseldorf Local Division in its most recent decision (UPC_CFI_807/2024, decision of 27 May 2026, headnote 1 and para. 240 – Wonderland v Cybex), Panel 2 of the Düsseldorf Local Division also applies the assessment criteria for equivalence under patent law established by the The Hague Local Division. Das Panel 2 der Lokalkammer Düsseldorf wendet ebenso wie zuletzt auch das Panel 1 der Lokalkammer Düsseldorf (UPC_CFI_807/2024, Entscheidung vom 27. Mai 2026, Leitsatz 1 und Rn. 240 – Wonderland v. Cybex) die von der Lokalkammer Den Haag festgelegten Beurteilungskriterien für die patentrechtliche Äquivalenz an.

Panel 2 of the Düsseldorf Local Division dismissed both an infringement action and the counterclaim for revocation, because the claim term 'directly closing check valves' (direkt schließende Rückschlagventile) excludes spring-loaded valves. Reading the claim with the description, which distinguishes spring-loaded valves and defines the claimed mechanism as closing by gravity and/or medium, the Court held that any spring contributing to closure takes a valve outside the claim, so the prosecution history could be left open. For equivalence, Panel 2 expressly adopted the four-question test of the Hague Local Division, as Panel 1 had done in Wonderland v Cybex, and found the first (same function) and third (legal certainty) questions not met where the patent itself excludes the variant. On validity, sufficiency requires only one way to carry out the invention, and the inventive-step attacks fell with the rejected broad construction. Costs followed the outcome of each action.

1. A manufacturing method of a publicly used product is made available to the public by use pursuant to Art. 54(2) EPC if, at the relevant date, the person skilled in the art could establish the method without undue burden by analysing the product’s composition. There is no support in the EPC for an additional requirement that the skilled person would need particular reasons for analysing the product. 2. Where a publicly available product discloses information which is relevant to the novelty of a claimed manufacturing method, the disclosure must be such that the skilled person can use the claimed method on the basis of their common general knowledge. Reproducibility of features which are not part of the claimed invention is not required.

The Court of Appeal held that a manufacturing method is made available to the public by prior use of a product if the skilled person could establish the method without undue burden by analysing the product, with no additional requirement that the skilled person have a particular reason to analyse it; reproducibility is required only for the claimed features, not for others such as ink quantities. Applying this, Gucci's own earlier 'Flora' leather products anticipated Agfa's leather-decorating method claim, because standard analytical techniques (GC/MS, IR, Raman) revealed the use of pigmented UV-curable inkjet inks; expert evidence produced without the defendant's internal knowledge carried more weight than analyses guided by it. The Court corrected the Hamburg LD's construction: 'achromatic colour' is a broad concept read with the description and common general knowledge, covering off-white base coats containing some chromatic pigment, and an amendment during examination did not exclude that. Following Fujifilm v Kodak, dependent claims were examined individually; claim 5 (summed polyfunctional monomer and oligomer content) and claim 9 survived, others were anticipated or obvious. The infringement appeal failed because infringement of claim 5 was not proven and neither R. 172 RoP nor Art. 55 UPCA shifted the burden of proof.

1-Defendant 3 is the shareholder of Defendants 2, 4 and 5. However, there is no evidence of its active, operational involvement or knowledge, in relation to the infringing acts committed by these three Defendants. 2-The Claimant intends to limit the injunction to patients whose treatment has not yet begun or to treatments that have been interrupted for any reason (Reply to SoD, para 6.24). The Claimant does not intend to seek an injunction in respect of ongoing treatments which do not, in the future, include a Torque Ridge feature. Furthermore, Defendants’ infringing products are not the only ones available on the market and do not represent an improvement on existing treatment methods. The Claimant has furthermore acknowledged that appliances already delivered to patients are not subject to corrective measures. Taking into account these considerations, the corrective measures requested by the Claimant are proportionate.

The Paris Local Division upheld a unitary patent on orthodontic clear aligners against attacks for insufficiency, added matter (intermediate generalisation) and lack of inventive step, applying the Court of Appeal's frameworks from NanoString, Amgen v Sanofi, Meril v Edwards and Abbott v Sibio. Construing the claim with the patent as its own lexicon, it read 'buccal' as 'facial', covering anterior as well as posterior teeth, which decided literal infringement. Liability in the UPC territory was imposed on the operating group companies but refused for the pure holding company, and the UK claims were dismissed because the claimant had not substantiated UK law in its statement of claim. The Court ordered a permanent injunction, recall, removal, destruction and information under Art. 67 UPCA, awarded damages only from grant because no compensation for the provisional-protection period had been requested or evidenced, refused publication of the decision and refused security for enforcement.

1. The party alleging added matter must identify, by means of a specific comparison, the subject-matter of the original disclosure that is said to have been extended in the later application or divisional patent. The mere fact that the original application contains numerous embodiments and theoretically allows a very large number of combinations does not establish added matter. Although this may raise issues of clarity or drafting technique, an extension of subject-matter arises only where the granted claim conveys technical information that the skilled person could not derive directly and unambiguously from the application as filed, contrary to Articles 123(2) and 138(1)(c) EPC. Procedural fairness under recital 5 of the Preamble to the RoP requires each party to plead its grounds of challenge clearly and with sufficient specificity. The Court can neither cure deficiencies in those grounds nor supplement them of its own motion, since doing so would substitute the Court for the challenging party and compromise its impartiality. 2. Where the alleged contribution to the art lies in the identification of a physiologically or pathologically distinct patient subgroup, the patent must provide sufficient technical information to identify that subgroup and to make it credible that the medicinal product is suitable for the claimed therapeutic use in that subgroup. In that context, the precise therapeutic dosage need not be stated in the independent claim, provided that the skilled person, on the basis of the patent, the prior art and common general knowledge, can select a safe and effective dose without undue burden in the exercise of their routine competence. 3. An inventive-step objection cannot be sustained by reconstructing the claimed solution with knowledge of the patent. Where an obviousness attack can be constructed only by selecting and combining numerous (more than 10) disclosures addressing different technical questions, none of which supplies the missing pointer or gives the skilled person a reason to consult the others, the resulting mosaic is indicative of an ex post facto analysis rather than the course the skilled person would have followed at the effective date.

The Milan Central Division dismissed a generic company's revocation action against a second-medical-use patent defined by a patient subgroup, maintaining it in a form the proprietor had unconditionally limited to match its amendment before the EPO Opposition Division. Late-filed prior art and new attacks introduced in the rejoinder, partly drawn from the EPO's preliminary opinion, were excluded under the front-loaded procedure, and the Court held that an EPO Board of Appeal decision on a parent patent has no res judicata effect before the UPC. It held that a generic added-matter attack resting on the number of combinations in the parent application was insufficiently substantiated (while examining it anyway), that the patent was sufficiently disclosed although claim 1 recites no dose and the trials excluded some patients, and that a patient subgroup confers novelty under Art. 54(5) EPC where its defining characteristics are functionally linked to an improved therapeutic effect. Inventive step was upheld because no realistic starting point, alone or combined with over ten further documents, pointed to selecting the subgroup with a reasonable expectation of success; such a mosaic indicates hindsight.

The Düsseldorf Local Division dismissed both Inficon's infringement action against Elitech's METRUM sniffing leak detector and Elitech's counterclaim for revocation of a patent on a sniffing leak detector with a remote reference gas inlet and a buffer chamber that homogeneously mixes reference gas. Construing the claim functionally and refusing to limit it by figures or embodiments, the Court held that the counterclaimant failed on added matter, novelty and inventive step because no prior art disclosed a buffer chamber permitting homogeneous mixing and no pointer or motivation to combine documents was presented; once the independent claim stood, no decision on the dependent claims was needed. On infringement, the claimant's measurements showed delayed detection but not that the housing itself retained and homogeneously mixed gas, and because the measurements were inconclusive from the outset, the defendants' failure to supply their own measurements did not amount to an admission under R. 171.2 RoP. An interim award of costs under R. 150.2 RoP was refused because success was split.

The Munich LD (Panel 1a) decided Maxell's infringement action and Samsung's counterclaim for revocation together and revoked the patent in its entirety. Claims 1 and 8 as granted lacked novelty over a single prior-art document, the Court holding that a disclosed operation panel for controlling content played back on the external device self-evidently discloses the claimed display of operating information and the transmission of the second user operation. Applying the CoA inventive-step framework of Meril v Edwards and Amgen v Sanofi, the Court found auxiliary requests 3 to 9c obvious over two combinations of prior art, adopting The Hague LD's rule that a plurality of routine modifications without functional interdependency is a mere aggregation of obvious features; auxiliary requests 12 and 13 failed for added matter because the application disclosed information indicating a UTF-8 character encoding item, not information that is itself UTF-8-encoded. The infringement action was dismissed without an infringement analysis, and costs followed the parties' agreement at the EUR 600,000 representation-cost ceiling plus the court fee.

The Mannheim Local Division decided an infringement action together with a conditional counterclaim for revocation and found the patent valid and infringed. On validity it held that an express statement in a prior-art document that a technical arrangement is absent cannot be read as an implicit disclosure of that arrangement, and that a skilled person will not undertake a fundamental redesign of a realistic starting point without a pointer. On the licence defence it held that a defendant must substantiate its defence in the UPC proceedings themselves; a reference to written submissions in parallel national proceedings, filed without their exhibits, does not satisfy R. 24 RoP. On attribution it applied Belkin v Philips and held that shareholder status alone does not make a holding company an infringer, while a former licensee that knows of its subsidiary's infringement and does not instruct it to stop has those acts attributed to it. It refused a stay under R. 295(m) RoP because the proceedings were at an advanced stage and the licence defence failed in any event.

1) Ein absolutes Verfahrenshindernis im Sinne der R. 362 VerfO ist ein Umstand, der die Durchführung oder Fortsetzung eines Verfahrens (vor dem Gericht) aus Rechtsgründen ausschließt, und zwar endgültig. Ein absolutes Verfahrenshindernis steht nicht zur Disposition der Parteien und kann auch nicht durch Nachreichung eines Schriftsatzes oder Nachholung beseitig oder geheilt werden. 2) Für die Bestimmung der Rechtskraft einer Entscheidung eines nationalen Gerichts ist das nationale Recht maßgeblich. 3) Ein substantiiertes („konkretes“, „specifically“, „spécifiquement“) Bestreiten gemäß R. 171.2 VerfO kann nicht verlangt werden, wenn es sich bei der vorgebrachten Tatsache um eine solche handelt, die außerhalb des Wahrnehmungs- und Verantwortungsbereichs der Partei liegt. Liegt die vorgebrachte Tatsache außerhalb des Wahrnehmungs- und Verantwortungsbereichs der Partei, ist es ihr möglich, sich mit Nichtwissen zu dieser Tatsache zu erklären. Die Tatsache gilt dann nicht als unstreitig, sie ist vielmehr beweisbedürftig. 4) Ist die Benutzung der technischen Lehre eines Patents aufgrund eines Vorbenutzungsrechts in einem Vertragsmitgliedstaat rechtmäßig, können die Handlungen in diesem Vertragsmitgliedstaat keine Begehungsgefahr hinsichtlich der Patentbenutzung in einem anderen Vertragsmitgliedstaat begründen. Die Begehungsgefahr erfordert die Feststellung einer rechtswidrigen Benutzung des Patents.

The Court of Appeal settled how a final national revocation judgment binds the Court. The res judicata of such a judgment is an absolute procedural bar under R. 362 RoP, the word absolute qualifying the bar rather than the effect of the judgment, and the bar leaves the Court no discretion to continue. Which effects that judgment has is determined by the national law of the state in which it was given, reached through the recognition rule of Brussels Ia and, in the alternative, through Art. 24(1)(e) UPCA. Applying German law, each ground in Art. 138(1) EPC is a separate cause of action and the grounds collected in Art. 138(1)(a) EPC form one, so the counterclaim was barred as to lack of patentability and admissible as to insufficiency. The Court also held that a party may declare ignorance of a fact lying outside its own sphere of perception and responsibility, so that R. 171.2 RoP does not deem the fact admitted but leaves it to be proved, and that lawful use under a prior-use right in one contracting member state can never found a threat of infringement in another, because a threat presupposes unlawful use.

The Munich Local Division (Panel 2) upheld EP 4 213 033 as granted against a counterclaim for revocation and found the Netflix streaming software to indirectly infringe the claimed client-side playback method under Art. 26(1) UPCA. On validity the panel applied the Court of Appeal's added-matter test (Abbott v Sibio: a feature of an embodiment may be omitted where it is not objectively necessary for the purpose of the claimed feature), held the primary reference not to disclose a 'media sequence' at all, and rejected every inventive-step attack for want of a motivation to arrive at a request queue that is flushed on a user instruction, expressly departing from the EPO Opposition Division's preliminary opinion on that point. On infringement the panel held that non-physical software is a 'means' under Art. 26(1) UPCA, that the client is the device together with the software so a queue maintained by the browser still counts, and that a claimant who has analysed one software variant and asserts the others are identical in the relevant functions has pleaded sufficiently unless the defendant contests specific differences. On remedies the panel held that means under Art. 26 UPCA are 'infringing products' for the information claim under Art. 67(1) UPCA, that no confidentiality restriction attaches to information ordered under Art. 67 UPCA and R. 191 RoP without an R. 262A RoP application, that penalty payments may be framed as minimum amounts per day, and that no enforcement security was warranted because the defendants' evidence of the claimant's finances was insufficient and the patent expires within eighteen months. The Court also admitted the EPO Opposition Division's preliminary opinion under R. 36 RoP so that Office and Court decide on the same basis.

HEADNOTES: The Court considers that, in the specific circumstances of the present case, the new defence arguments submitted by the respondents for the first time in their last written submission concerning the interpretation and infringement of feature 1.6 are admissible. For the purpose of assessing the admissibility of the new arguments raised by the respondents with regard to the interpretation and infringement of feature 1.6, the following considerations are relevant. First, it should be emphasised that claim construction is a matter of law, on which the Court may therefore also elaborate ex officio. The classification of this issue as a matter of law also entails that, had this Court held the respondents’ new submissions on this point to be inadmissible at first instance, the Court of Appeal could, in all likelihood and in full compliance with the adversarial principle, have taken those same arguments into consideration, with the practical consequence that one level of jurisdiction on a substantive issue in the present dispute would have been lost (for such a case, specifically related to non-infringement arguments, see UPC CoA no. 36/2026, order of 8 July 2026, para. 158 et seq.). At the same time, it is essential and indispensable that the opposing party is always given the opportunity to be heard, in accordance with the adversarial principle and the right of defence. The respondents introduced this new argument in their last written submission, filed one month before the oral hearing, without relying on any additional factual element or document that had not been on the case file from the outset of the proceedings. Against that procedural background, significance must also be attached to the applicant’s conduct, since the applicant merely objected to the late filing, without requesting, even in the alternative or as a subsidiary request, the grant of a short time limit to file a reply confined to that specific issue. During the oral hearing, the applicant was in fact given an adequate opportunity to respond to that specific argument, both as regards the interpretation of the claim and as regards infringement of the patent. All the foregoing considerations must be assessed in the specific context of proceedings for provisional measures, where there is considerable time pressure and the parties are required to organise their arguments within very short time limits. A different conclusion would amount to an overly rigid application of the front-loaded character of UPC proceedings, at least in the specific context of proceedings for provisional measures, with an excessive and in any event disproportionate impairment of the effectiveness of the right of defence.

The Milan Local Division granted a UPC-wide preliminary injunction over a continuous glucose monitoring system, holding it more likely than not that the patent is valid and literally infringed. It first admitted the respondents' new claim-construction and non-infringement arguments filed one month before the hearing: claim construction is a matter of law the Court may address ex officio, refusing the arguments would risk losing an instance because the Court of Appeal could take them up, and in provisional-measures proceedings a rigid application of front-loading would disproportionately impair the right of defence. On construction it adopted a balanced approach — functional claim wording read in the light of the disclosed embodiment but not confined to its structural detail — and rejected a limitation to a movable inner housing that was inferable only from the shading of a drawing and named nowhere in the description. All three validity attacks failed at the prima facie standard, the insufficiency case being undermined by the respondents' own inventive-step case that a workable alternative to the disclosed mechanism was obvious, and the inventive-step attack failing because the chosen starting point taught away from adding a complex inserter. The EU authorised representative under Art. 11 MDR was held to be an infringer within Art. 25 and 63 UPCA. The balance of interests favoured the applicant because of price erosion in tender-based and insurance-based reimbursement segments, and the interim costs award was moderated to 30% of the ceiling because the respondents had honoured an undertaking to give two months' notice before market entry.

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.

The Düsseldorf Local Division revoked the granted claims of a media-sharing patent for lack of novelty, upheld it in the wording of the tenth auxiliary request examined and found indirect infringement of that amended claim by a streaming service. The order on information and accounting is the substantial part: the right under Art. 67 UPCA with Art. 68(3)(a) and (b) UPCA and R. 191 RoP covers supporting documents and, at the Court's discretion, confirmation by a sworn auditor or an affidavit, for which no express legal basis in the UPCA or the Rules is needed because it is a matter of evidence. Since the Court of Appeal has held that there is no implicit limitation on the use of information obtained under Art. 67 UPCA, a use limitation was written into the operative part, and access was restricted to outside counsel and two named representatives by a separate confidentiality order under R. 262A RoP, which applies at least mutatis mutandis to information a party must disclose under a decision rather than information in its own pleadings. Enforcement security was refused because the defendants put forward nothing to justify it and did not answer the claimant's evidence of solvency, and the interim award of damages was dismissed as unjustified.

(i) The review of the admissibility of an Application to amend a patent under R. 30.1 RoP shall be limited to the assessment as to whether the applicant to the amendment has actually filed an explanation regarding the requirements of Art. 84 and 123(2), (3) EPC, and not whether said explanation is sufficiently convincing in view of the assessment of the validity of the patent in its amended form, which remains to be decided when assessing said validity on the merits rather than when assessing the admissibility of such an Application. (ii) As a general rule, in case of claim amendments, the entire patent description which remains unamended may be used as explanatory aid for the interpretation of a patent claim. (iii) It is for the party relying on facts to prove those facts and to provide evidence that the disputed acts would amount to acts of infringement under the applicable law when assessing whether the part of a European patent outside the territories of UPCA Contracting Member States is likely infringed.

The Court of Appeal upheld the revocation of the Dutch, French, German and Italian parts of a patent for lack of inventive step and the dismissal of the infringement action that followed from it. It set the standard of review for an application to amend a patent under R. 30.1 RoP: admissibility asks only whether the proprietor actually filed an explanation on Art. 84 and 123(2), (3) EPC, and whether that explanation convinces belongs to the assessment of validity on the merits. On claim construction the Court held that where the claims are amended and the description is not, the unamended description may still serve as an explanatory aid, and that a feature must not be reduced to an embodiment of the specification. On the part of the patent outside the UPCA Contracting Member States the Court confirmed that it has jurisdiction over infringement in Poland under Art. 31 UPCA with Art. 4 and 8 Brussels Ia, notwithstanding the exclusive jurisdiction over validity in Art. 24(4) Brussels Ia, but dismissed the claim because the claimant proved neither the facts nor that those facts amount to infringement under Polish law, which Rome II and Art. 24(2)(a) UPCA make applicable.

Für eine unmittelbare Verletzung eines Erzeugnisanspruchs ist entscheidend, ob die angegriffene Ausführungsform aufgrund ihrer Beschaffenheit und ihrer Verwendungstauglichkeit objektiv in der Lage ist, die Merkmale des Patentanspruchs zu erfüllen. When determining whether a product claim has been directly infringed, the decisive factor is whether the challenged embodiment is objectively capable of fulfilling the features of the patent claim, given its nature and suitability for use.

The Düsseldorf Local Division found direct literal infringement of a product claim to a rotary osteotome and dismissed the revocation counterclaim in full. Its headnote states the test for direct infringement of a product claim: what matters is whether the challenged embodiment is objectively capable, by its nature and its suitability for use, of fulfilling the features of the claim. The defendants' argument that their burs are only ever rotated in the direction in which the alleged cutting faces trail therefore failed, since nothing prevented rotation in the other direction and their own brochure warned that reverse rotation produces high cutting performance. On the pleading standard, the Court held that once the claimant has substantiated infringement with a detailed party expert report, a broad denial does not put the allegation in issue; the defendants had to answer with comparable detail, if necessary with an expert report of their own. Standing was established under Art. 47(2) UPCA through a chain of exclusive licence and sublicence, whose validity despite identical signatories on both sides was governed by Michigan law and unrebutted. On validity, prior art recommending a rake angle of about 0° was held to point away from making that angle negative, so the person skilled in the art would not, rather than merely could not, arrive at the claim.

When assessing urgency, it is relevant when the applicant was able to physically obtain and examine the potentially infringing product, provided that the applicant was not able, on the basis of other information obtained earlier, such as drawings, to determine with sufficient certainty whether the potentially infringing product infringes the patent in suit. Bei Beurteilung der Dringlichkeit ist darauf abzustellen, wann die Antragstellerin das potenzielle Verletzungsprodukt physisch erlangen und untersuchen konnte, falls sie aus zuvor erlangten anderen Informationen, wie zB Zeichnungen, nicht in der Lage war, mit hinreichender Sicherheit festzustellen, ob eine Verletzung des Antragspatents durch das potenzielle Verletzungsprodukt erfolgt.

The Hamburg Local Division granted a preliminary injunction over a battery-powered surgical stapling instrument, holding it more likely than not that claim 1 is literally infringed and that the patent is valid. The decision's headnote concerns urgency: the moment at which the applicant was able physically to obtain and examine the accused product is the relevant date, provided that earlier information such as drawings did not allow it to determine with sufficient certainty whether the product infringes. Applying the Court of Appeal's framework, the Court held that a respondent invoking delay must show both that the accused product is essentially identical to an earlier available product as regards the patent in suit and that the earlier product gave reasonable cause to investigate; a blanket assertion of 'identical construction' without reference to the concrete claim features does not meet that standard. The Court also confirmed that a patentee is under no general market-monitoring duty and is not obliged to assert all potentially relevant patents against one embodiment, expressly preferring the Court of Appeal's position over the OLG Düsseldorf's Insulinpumpe line. Passive standing of the EU authorised representative under Art. 11 of the Medical Devices Regulation was affirmed by analogy to an online service provider, and the pending CJEU reference on that very question was met not with a stay but with an order for security covering the risk that the first-instance ruling is later reversed.

1. For competition law reasons, the patent holder is only required to indicate to the patent user one licensing route that satisfies the FRAND requirements (concurring with LD Munich, decision of 18 December 2024 – UPC_CFI_9/2023 – Huawei v Netgear, p. 136). 2. However, there are constellations where the implementer can demand a bilateral licence instead of a pool licence. Such constellations are for example, but non exclusively, given when the implementer expressed its desire to obtain a multi standard-licence or to sign cross-licencing agreements with the individual patent proprietors. The same applies when an implementer had already advanced with a significant number of other pool contributors to conclude bilateral licences for the whole pool portfolio. 3. Choosing the bilateral route does not ease the implementer’s obligation to show its willingness to take a licence throughout the course of the negotiations. In particular, an implementer’s insistence on bilateral licensing can still indicate unwillingness when the implementer fails to present comprehensible reasons for its decision to opt for bilateral agreements, failed to conclude bilateral agreements with the other SEP pool licensors within reasonable time, and refrained from placing a security. This is even more true when initially being provided a FRAND pool offer.

The Hamburg Local Division found the patent infringed, dismissed the counterclaim for revocation and rejected both the exhaustion defence and the FRAND defence of a standard-essential patent implementer. On the FRAND question the Division held that a SEP holder need indicate only one licensing route satisfying FRAND, so an uncontested pool offer discharges its obligation, but that in defined constellations an implementer may demand a bilateral licence instead — provided it gives comprehensible reasons for that choice. The implementer here gave none, concluded bilateral licences with only a fraction of the pool licensors over nine years and placed no security, which together showed it was not genuinely willing to take a licence. The Division expressly declined to follow the LD Munich and the German Federal Court of Justice in treating a missing security as an automatic bar to the FRAND defence, treating it instead as one further indication of unwillingness. Because willingness was absent, the Huawei v ZTE assessment terminated and the SEP holder's own offers were never examined for FRAND compliance.

1. For competition law reasons, the patent holder is only required to indicate to the patent user one licensing route that satisfies the FRAND requirements (concurring with LD Munich, decision of 18 December 2024 – UPC_CFI_9/2023 – Huawei v Netgear, p. 136). 2. However, there are constellations where the implementer can demand a bilateral licence instead of a pool licence. Such constellations are for example, but nonexclusively, given when the implementer expressed its desire to obtain a multistandard- licence or to sign cross-licencing agreements with the individual patent proprietors. The same applies when an implementer had already advanced with a significant number of other pool contributors to conclude bilateral licences for the whole pool portfolio. 3. Choosing the bilateral route does not ease the implementer’s obligation to show its willingness to sign a licence throughout the course of the negotiations In particular, an implementer’s insistence on bilateral licensing can still indicate unwillingness when the implementer fails to present comprehensible reasons for its decision to opt for bilateral agreements, failed to conclude bilateral agreements with the other SEP pool licensors within reasonable time, and refrained from placing a security. This is even more true when initially being provided a FRAND pool offer.

The Hamburg Local Division granted an injunction on a standard-essential patent for the AAC audio standard, dismissing both an exhaustion defence and a FRAND defence. On the pool-versus-bilateral question it held that for competition law reasons a patent holder need only point the implementer to one licensing route that satisfies FRAND, but recognised that in defined constellations an implementer may demand a bilateral licence instead of a pool licence, for instance where it seeks a multi-standard licence or cross-licences with the individual proprietors, or where it has already advanced with a significant number of pool contributors towards bilateral licences for the whole portfolio. Choosing the bilateral route does not relax the implementer's duty to demonstrate willingness throughout the negotiations: insistence on bilateral licensing still indicates unwillingness where the implementer gives no comprehensible reasons, fails to conclude bilateral agreements with the other pool licensors within a reasonable time, and provides no security. The Court expressly declined to follow the automatic-security trigger adopted by the Munich Local Division and the German Federal Court of Justice, treating the absence of security as one indication of unwillingness among others rather than a freestanding bar. On exhaustion it held that Art. 29 UPCA regulates the matter exhaustively and extends to method claims, but that a software library requiring compilation and integration is not an end-user product within the pool licence relied on.