{"id":2022,"date":"2025-03-08T08:45:19","date_gmt":"2025-03-08T08:45:19","guid":{"rendered":"https:\/\/ipfray.com\/?p=2022"},"modified":"2025-03-08T08:45:19","modified_gmt":"2025-03-08T08:45:19","slug":"upc-roundup-1-week-coa-upholds-preliminary-injunction-with-clarification-on-competitive-harm-more-aasis-and-more","status":"publish","type":"post","link":"https:\/\/ipfray.com\/staging1\/upc-roundup-1-week-coa-upholds-preliminary-injunction-with-clarification-on-competitive-harm-more-aasis-and-more\/","title":{"rendered":"UPC Roundup (1 week): CoA upholds preliminary injunction with clarification on competitive harm; more AASIs; and more"},"content":{"rendered":"\n
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This is a summary of developments in and around the Unified Patent Court (UPC) in the week since our March 1, 2025 UPC Roundup<\/a>, which include several interesting decisions at both the Court of Appeal (CoA) and the Court of First Instance (CFI).<\/p>\n<\/div>\n\n\n\n

1. CoA upholds provisional measures in Syngenta v. Sumi Agro<\/em>, clarifies competitive harm in monopoly markets, adds Romania and denies security request between two UK companies<\/h2>\n\n\n\n

On Monday (March 3, 2025), the UPC’s Court of Appeal (CoA) upheld (PDF<\/a>) a preliminary injunction (PI; formally called provisional measures in the UPC). Given the UPC’s popularity among those seeking PIs, appellate rulings on PIs are of particular relevance.<\/p>\n\n\n\n

The Munich Local Division (LD) enjoined Sumi Agro on August 27, 2024 over its equally UK-based rival Syngenta’s EP2152073<\/a> (“Herbicide compositions”) (PDF<\/a>). At the time, an ongoing infringement was shown at least with respect to a non-UPC contracting state: the Czech Republic. At that pre-BSH Hausger\u00e4te<\/em> stage, the UPC was not asked to order any remedies with respect to the Czech market, but that infringement was shown in order to establish the risk of an imminent first infringement in UPCland. Syngenta furthermore obtained a sample in Bulgaria, a UPC contracting state.<\/p>\n\n\n\n

A non-infringement argument by Sumi Agro according to which the goods sold inside and outside of UPCland differed is summarized by the CoA as follows:<\/p>\n\n\n\n

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Sumi Agro, for its part, refutes that the Kagura product actually marketed within the UPC territory contains from 1 % to 95 % by weight fatty acids. According to Sumi Agro, for the manufacture of its Kagura composition marketed in the UPC territory a rapeseed oil which contains between 0.0 % and 0.5 % free fatty acids is used as diluant [a thinner], not as a stabilizer. It does not include an additional fatty acid ingredient.<\/p>\n<\/blockquote>\n\n\n\n

The CoA was unconvinced that the product claim at issue could be interpreted as limited to the use of vegetable oil (such as rapeseed oil) in the manufacturing of the product:<\/p>\n\n\n\n

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Claim 1 is a product claim. Product claims confer protection to all processes for making that product. The skilled person will look at the teaching of the specification as a whole when reading the claim, rather than singling out a specific composition and draw conclusions based on separate aspects of the invention as described in the patent specification. In particular examples cannot generally be understood as limiting the scope of the claim.<\/p>\n<\/blockquote>\n\n\n\n

The CoA also affirmed the Munich LD on the presumption of validity.<\/p>\n\n\n\n

With respect to the necessity of a PI, the patentee argued that there would be lasting damage from an infringing product’s temporary presence on the market (i.e.<\/em>, between launch and a permanent injunction). On this subject, the CoA decision contains the following headnote:<\/p>\n\n\n\n

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“A move from a market situation where only one product is available, to one where there are two competing products, can be expected to lead not just to price pressure but to a permanent price erosion. This risk is an important factor when considering whether a provisional injunction is necessary.”<\/p>\n<\/blockquote>\n\n\n\n

There isn’t actually anything more specific about it in the body of the document other than that it is a \u20ac50 million\/year market.<\/p>\n\n\n\n

With respect to security, the CoA did not see a need to order it here, and the argument that enforcement in the UK could be difficult was given little or no weight, possibly also because both companies are UK-based.<\/p>\n\n\n\n

After the first-instance decision, Romania joined the UPC. The CoA exercised its discretion to the effect of allowing the addition of Romania. The application of Art. 34 UPCA (territorial scope of decisions) should be automatic, the CoA says.<\/p>\n\n\n\n

Finally, on costs the CoA decided that a PI appeal concludes the PI proceedings, and that’s why a cost decision should issue at that stage.<\/p>\n\n\n\n

Whether the main proceedings were timely initiated is in dispute between the parties, but is not for the CoA to resolve at this point.<\/p>\n\n\n\n

Second panel of CoA: Presiding Judge Rian Kalden<\/a>, Judge-rapporteur Ingeborg Simonsson<\/a>, Judge Patricia Rombach<\/a>, Technically Qualified Judge Arwed Burrichter<\/a> and Technically Qualified Judge Anna Hedberg<\/a>.<\/p>\n\n\n\n

Counsel for defendant-appellant Sumi Agro: Marks & Clerk’s Gareth Williams<\/a> and Bardehle Pagenberg’s Johannes Heselberger<\/a>, Dr. Axel Berger<\/a>, Dr. Kerstin Galler<\/a> and Dr. Markus Ackermann<\/a>.<\/p>\n\n\n\n

Counsel for (prevailing) plaintiff-appellee Syngenta: Fieldfisher’s Dr. Joern Peters<\/a> (“J\u00f6rn” in German), Benjamin Grzimek<\/a> and Aylin Cremers<\/a>; Michalski, Huettermann & Partner’s Prof. Dr. Aloys H\u00fcttermann<\/a> (“Huettermann” in German); and Syngenta Crop Protection AG in-house patent attorneys Dr. Filip Alois J. De Corte<\/a> and Dr. Christopher Andrews<\/a>.<\/p>\n\n\n\n

2. Two more anti-antisuit injunctions (AASIs): Munich LD<\/h2>\n\n\n\n

(link to detailed article<\/a>)<\/p>\n\n\n\n

Access Advance pool licensors Dolby and Sun Patent Trust obtained anti-antisuit injunctions (AASIs) against potential interference from a proceeding in the District of Massachussetts. In total, the UPC has now granted four AASIs. The first two came down in December, also in the Munich LD.<\/p>\n\n\n\n

3. No new invalidity contentions during oral hearing: Dusseldorf LD<\/h2>\n\n\n\n

(link to LinkedIn post<\/a>)<\/p>\n\n\n\n

CUPOWER has fended off an infringement complaint by rival Tridonic. There was no infringement under the court’s claim construction. The revocation counterclaim was rejected as well, and the court stated that no new invalidity contentions must be presented at the oral hearing.<\/p>\n\n\n\n

4. Defendant must submit pleadings on auxiliary requests even if relevance to be determined: Dusseldorf LD<\/h2>\n\n\n\n

(link to LinkedIn post<\/a>)<\/p>\n\n\n\n

In GSK v. Pfizer<\/em>, it was easy for the Dusseldorf LD to grant a stipulation of the parties to refer the revocation counterclaim to the Central Division (CD), but there was also a disputed question. The defendants wanted to limit the scope of their regular pleadings to the patent-in-suit as granted. But the court did not want to take its chances that it might have to order additional briefing on the auxiliary requests, so the defendants must comment on them now.<\/p>\n\n\n\n

5. Judge-rapporteur can’t grant leave for appeal of single-judge decision: Paris LD<\/h2>\n\n\n\n

N.J Diffusion is suing Gisela Mayer GmbH in the Paris LD. The defendant asked for security, and in the event of denial wanted at least to be able to appeal the decision to the CoA. But only panel decisions can be appealed, which is why the judge-rapporteur couldn’t grant leave to appeal (PDF (in French)<\/a>).<\/p>\n\n\n\n

6. ParTec patent severed<\/h2>\n\n\n\n

In the fall, German supercomputer firm ParTec (whose CEO Bernhard Frohwitter is also a famous patent litigator and monetizer, though for the avoidance of doubt, ParTec is an operating company) sued NVIDIA in the UPC’s Munich LD (October 28, 2024 ip fray<\/strong> article<\/a>). The choice of the UPC, for its efficiency and pragmatism, was explained at a subsequent press conference (November 7, 2024 ip fray<\/strong> article<\/a>).<\/p>\n\n\n\n

ParTec asserted two patents in the same complaint:<\/p>\n\n\n\n