Context: Two years ago, Ericsson brought two standard-essential patent (SEP) cases against ASUS in the UPC’s Milan Local Division (LD). The trial is still a few months away, a fact that may seriously dissuade other patent holders from filing in that venue (April 11, 2026 ip fray article). Ericsson brought two applications for provisional measures (preliminary injunction (PI) motions), and the hearing took place in early May.
What’s new: Today (approximately six weeks after the hearing) the Milan LD adjudicated the two parallel PI motions (PDF 1, PDF 2), denying the PI motions for lack of urgency and furthermore denying Ericsson’s request for a multi-million-euro security amount to protect itself from a future situation in which a damages claim might be cumbersome to enforce. The court held that no change in circumstances during the main proceedings suggested that a PI was now warranted. It deemed the security request likely inadmissible and, in any event, denied it. The order explains at length why the trial date is only in September 2026.
Direct impact:
- Ericsson could appeal, but a decision by the Court of Appeal (CoA) would not come down before the hearing in the main proceedings, making an appeal unlikely.
- Ericsson is not going to get any leverage from those two UPC cases for many more months to come.
Wider ramifications: The Milan LD is digging itself an ever deeper hole through its case management:
- It’s explanations are counterproductive. Other UPC divisions have shown that they find ways to adjudicate cases on reasonable timelines even when some of the same factors as in this case are present, and they have often even told plaintiffs that certain extensions are not granted in the interest of keeping the schedule.
- Through the slow adjudication of the PI motions (UPC divisions and other European courts have already ruled on PI motions right after hearing), the Milan LD just confirms again that it would rather get fewer cases than operate on reasonable timelines.
Case management and Steve Jobs’s janitor/VP comparison
Over the course of many years, Steve Jobs famously explained the following to executives:
“When you’re the janitor, reasons matter. From the level of a vice president up, reasons don’t matter.”
That was not meant to say that logic has no merit. The idea is that at a certain level of hierarchy, one has to deliver results, while at the lower echelons it may be acceptable to blame a problem on someone else’s unreliability or unforeseen events.
The same applies here. The benchmark is what other UPC divisions do. A division like the Milan LD should be particularly interested in attracting more cases. These Ericsson v. ASUS represented a major opportunity, but it was wasted. Instead, the court is now playing a blame game, suggesting that Ericsson’s confidentiality concerns (which also gave rise to an appeal) delayed the proceedings. The decision says that any other course of action on the court’s part would have “potentially undermin[ed] the claimant’s right to a full defence” (which is obviously an error because the context is not revocation, and in all other respects a claimant does not defend itself). But again, case management is the court’s prerogative. If some UPC divisions are paranoid about being overruled by the CoA, they will always have to stay everything where there is any relevant appellate proceeding going on (even if in a different case). They can do that. But smart plaintiffs will draw their conclusions.
The UPC’s docket distribution problem is multifactorial. There is no easy fix. and some of the proposals that have been floated would just harm the UPC without benefiting some less popular divisions when all is said and done. But one part of the problem is that in some divisions the judges act as if there was no competition for cases. One example is a case in another division than Milan where the plaintiff had prevailed in the UK, on appeal. Unless there is a particular reason for which the outcome absolutely must be different under UPC law, the presiding judge of an unpopular division must be realistic about how this will be perceived by plaintiffs (generally, not just in the case at hand) and their counsel.
None of this means to suggest that courts should knowingly and willingly make incorrect decisions. But when the case law (also on procedural questions) is just developing, their wiggle room is particularly big. It is up to them how they use it. They make their bed and they lie in it.
A delay of more than two years from filing cannot be explained away. There were no extraterrestrians who froze the UPC for an extended period of time. Russia did not invaded any UPC contracting member state. There was no force majeure. Ericsson wanted to protect the confidentiality of documents. That does not mean they wanted delay in a dispute that also involves cases in other jurisdictions. ASUS wanted the delay, and the court allowed it to get away with it.
Urgency during ongoing proceedings
The decision (technically two, but materially consistent) explains the Milan LD’s take on PIs at an advanced stage of the related main proceedings. It makes sense to set a reasonably high bar for new circumstances. The Milan LD concluded that ASUS had basically just continued its conduct, even if it involved new product generations, and expressed further concerns over urgency in light of contacts between the parties concerning the standard in question that took place years before. Unlike the timeline, that part of the decision does not appear unreasonable, at least not based on the limited amount of information that is publicly available.
The headnotes are nevertheless of limited relevance given the low number of filings in that division.
Security for royalties (damages)
In certain jurisdictions, among them India, plaintiffs have successfully sought security for royalties while proceedings took longer. Of course, India has different patent statutes, even if they are partly modeled after European patent law. But the Milan LD must ask itself why it wants to be less plaintiff-friendly than various other jurisdictions in the world, and this refusal to grant that kind of relief will not necessarily become the UPC line. Other divisions will potentially be more receptive to it in circumstances where a defendant does not have substantial assets in the UPC’s contracting member states. And then the CoA will decide.
Court and counsel
Panel: Presiding Judge (and judge-rapporteur) Pierluigi Perrotti, Judge Alima Zana, Judge Rute Lopes (Lisbon, Portugal), and Technically Qualified Judge Dr. Christoph Norrenbrock.
Counsel for Ericsson: Winston Taylor’s Prof. Wim Maas, David Mulder, and Faziel Abdul.
Counsel for ASUS: Wildanger’s (ip fray firm profile) Dr. Alexander Wiese, Eva Geschke. Jan-Caspar Maiers, Julia Mauelshagen, and Dr. Felix Beck; Bosch Jehle patent attorneys Dr. Thomas Hell and Dr. Rudolf Reichold; and Nunziante Magrone’s Niccolò Ferretti.