UPC Court of Appeal establishes need for conditional appeals to keep conditional revocation counterclaims alive in ParTec v. Nvidia

Context:

• It has recently become popular at the UPC to make revocation counterclaims conditional. Quite often the judges ask the defendant to do so, just so the court doesn’t have to deal with (in)validity if there’s no infringement. The mechanism was central to Emboline v. AorticLab (July 22, 2026 ip fray article) and the same question arose at the Vienna LD’s January 14, 2026 hearing in Messerle v. Sabert (January 15, 2026 ip fray article).
• In March 2025, ParTec sued Nvidia for the infringement of EP3743812 (“Application runtime determined dynamical allocation of heterogeneous compute resources”) in the UPC’s Munich Local Division (LD). Nvidia then filed a counterclaim, seeking a declaration of the invalidity of EP’812. In March, the Munich LD dismissed the infringement action and held that a decision on the counterclaim for invalidation of the patent in dispute was unnecessary because it was made conditional on the success of the infringement action. While ParTec filed an appeal in April, Nvidia did not within the mandatory timeframe. However, in August, Nvidia then filed a motion for reinstatement of its right to file an appeal against the Munich LD’s decision. ParTec did not oppose that motion.