Context: The German Local Divisions (LDs) of the Unified Patent Court (UPC) are more willing to grant preliminary injunctions (PIs) than German national courts (April 30, 2024 ip fray article).
What’s new: The UPC’s Hamburg Local Division has scheduled a PI hearing in Ballinno v. UEFA & Kinexon for Monday, June 3, 2024. That is the first business day after the UEFA Champions League final (Borussia Dortmund vs. Real Madrid) at London’s Wembley Stadium and less than two weeks before the start of the EURO 2024, a tournament of European national soccer teams that takes place in Germany this time. Ballinno is tackling (no pun intended) a technique that assists referees as they seek to identify offside situations in real time (i.e., while the ball is in play).
Direct impact: Apparently Ballinno is a non-practicing entity, so they are seeking the injunction for the purpose of extracting royalties from UEFA’s technology partner and trying to hold the EURO tournament hostage for that purpose. Chances are that Kinexon’s supplier agreement with UEFA comes with an indemnification (if not a hold-harmless) clause. The court will presumably strive to decide right at the end of the June 3 hearing, or otherwise in a matter of days. The Hamburg LD will probably also want to enable an appeal to be brought before the start of the EURO.
Wider ramifications: The case raises an interesting proportionality question with a view to irreparable harm. The harm to the EURO tournament from an injunction would be obvious, and offside decisions are among the most controversial parts of any soccer game. What is doubtful is that Ballinno is entitled to preliminary injunctive relief, given that its only interest is of a monetary nature and the patent is rather old (it was granted in 2011), making it unlikely that any alleged infringement has been discovered only recently.
The order setting the PI hearing is dated May 13, 2024 (yesterday).
The patent-in-suit is EP1944067 on a “method and system for detecting an offside situation,” which is about providing a referee (which could also be a linesman, of course) with an acoustic signal the moment the ball is kicked. This is about real-time acoustic signaling based on contacts with the ball as opposed to image recognition or after-the-fact video assistant referee (VAR) interventions, though the technique may also be useful in conjunction with the latter.
The three-judge panel consists of three legally qualified UPC judges, which may suggest that the patent is considered simple enough for patent-specialized judges to understand that the involvement of a technically qualified judge appears unnecessary. In the alternative, a technically qualified fourth judge will be appointed between now and the hearing to join
- Presiding Judge Sabine Klepsch (whom the patent litigation community has known for some time as a Presiding Judge of one of the patent litigation divisions of the Dusseldorf Regional Court; she commutes to Hamburg for UPC hearings),
- Judge Samuel Granata from Belgium, and
- Judge Stefan Schilling (who also serves on the Hanseatic Higher Regional Court, which is the regional appeals court in Hamburg).
At this point, ip fray seriously doubts (for the reasons stated in the Wider ramifications part) that the equitable criteria for a PI are fulfilled. On the technical merits of the infringement allegations or on potential invalidity contentions, it is too early for ip fray to take a position.