Context: Qiagen is suing bioMérieux in the Unified Patent Court’s (UPC) Dusseldorf Local Division (LD) over a product for testing patients for latent tuberculosis (see item 2 of our March 16, 2025 UPC Roundup). Latent tuberculosis can progress to active tuberculosis. The patent-in-suit is EP2726883 (“A cell mediated immune response assay with enhanced sensitivity”).
What’s new: Qiagen’s public announcement of that UPC action has been deemed unlawful by a French commercial court for constituting “dénigrement” (denigration) and “concurrence déloyale” (unfair competition). Under the threat of contempt-of-court sanctions, Qiagen published the decision on its website on April 15, 2025, as did (voluntarily, and with the French court’s permission) bioMérieux (corporate website).
Direct impact: The financial impact is limited. The court ordered a payment of € 10K (bioMérieux sought € 30K). It’s also unclear what effect this will have on the market. The decision makes it easier for bioMérieux to show to its customers that it’s innocent until proven guilty (in patent law, not criminal, terms, obviously).
Wider ramifications: Parties who want, or even have obligations under capital markets laws, to make their UPC complaints known will need French legal advice if there is a possibility of defendants taking similar steps as bioMérieux did in this Qiagen case.
The Tribunal des Activités Économiques de Lyon (Lyon Commercial Court) received a complaint from bioMérieux on March 13, 2025. It assumed jurisdiction and also recognized the matter as being urgent.
According to the decision, bioMérieux’s key argument was that Qiagen publicly alleged an infringement without being able to back it up with a court ruling (at least not yet), and that this announcement, which was purportedly picked up by certain media, impacted its sales of competing tuberculosis test kits. Only a few days later, bioMérieux published its financial results.
According to the decision, its tuberculosis test kit named QuantiFERON accounted for 22% of Qiagen’s 2024 revenues.
The presiding judge considered it denigration and unfair competition to put out a statement accusing bioMérieux of infringement without stating any “data” and the nature of the facts of the infringement allegations, and without any court decision at this stage. The court considers healthcare a “very sensitive” field.
That reasoning does not provide guidance for other plaintiffs intending to make their UPC actions widely known. It does, however, show that there is no blanket prohibition of such announcements, which wouldn’t be possible given that a publicly-traded plaintiff may have its own reporting obligations to the stock market. So in the end it also depends on the wording.
We were still able to find quotes from Qiagen’s statement on third-party websites such as this one. Based on what we found, and on what the French court order says about Qiagen’s announcement, does not go beyond the “we protect our IP” type of rhetoric found in many corporate press releases announcing the filing infringement lawsuits. But for this French court, it was apparently too much. This raises the question of what Qiagen could actually have done to make the complaint known so as to keep clear of being deemed by the Lyon court to run afoul of French anti-denigration and unfair competition laws. This may at some point have to be clarified by an appeals court.
Judge and counsel
Presiding Judge: Patrick Boccardi.
Counsel for bioMérieux: Bird & Bird’s Anne-Florence Raducault (who is apparently registered in Lyon) and Thierry Lautier (lead counsel). The UPC registry lists Oliver Jan Juengst (“Jüngst” in German) as its counsel in the Dusseldorf UPC action.
Counsel for Qiagen: Lyon-based practitioner Gaël Sourbé and Hogan Lovells, whose Dr. Clemens Plassmann is counsel-of-record in the Dusseldorf UPC case.