This is a summary of developments in and around the Unified Patent Court (UPC) in the week since our March 1, 2025 UPC Roundup, which include several interesting decisions at both the Court of Appeal (CoA) and the Court of First Instance (CFI).
1. CoA upholds provisional measures in Syngenta v. Sumi Agro, clarifies competitive harm in monopoly markets, adds Romania and denies security request between two UK companies
On Monday (March 3, 2025), the UPC’s Court of Appeal (CoA) upheld (PDF) 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.
The Munich Local Division (LD) enjoined Sumi Agro on August 27, 2024 over its equally UK-based rival Syngenta’s EP2152073 (“Herbicide compositions”) (PDF). 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 Hausgeräte 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.
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:
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.
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:
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.
The CoA also affirmed the Munich LD on the presumption of validity.
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., between launch and a permanent injunction). On this subject, the CoA decision contains the following headnote:
“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.”
There isn’t actually anything more specific about it in the body of the document other than that it is a €50 million/year market.
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.
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.
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.
Whether the main proceedings were timely initiated is in dispute between the parties, but is not for the CoA to resolve at this point.
Second panel of CoA: Presiding Judge Rian Kalden, Judge-rapporteur Ingeborg Simonsson, Judge Patricia Rombach, Technically Qualified Judge Arwed Burrichter and Technically Qualified Judge Anna Hedberg.
Counsel for defendant-appellant Sumi Agro: Marks & Clerk’s Gareth Williams and Bardehle Pagenberg’s Johannes Heselberger, Dr. Axel Berger, Dr. Kerstin Galler and Dr. Markus Ackermann.
Counsel for (prevailing) plaintiff-appellee Syngenta: Fieldfisher’s Dr. Joern Peters (“Jörn” in German), Benjamin Grzimek and Aylin Cremers; Michalski, Huettermann & Partner’s Prof. Dr. Aloys Hüttermann (“Huettermann” in German); and Syngenta Crop Protection AG in-house patent attorneys Dr. Filip Alois J. De Corte and Dr. Christopher Andrews.
2. Two more anti-antisuit injunctions (AASIs): Munich LD
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.
3. No new invalidity contentions during oral hearing: Dusseldorf LD
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.
4. Defendant must submit pleadings on auxiliary requests even if relevance to be determined: Dusseldorf LD
In GSK v. Pfizer, 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.
5. Judge-rapporteur can’t grant leave for appeal of single-judge decision: Paris LD
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)).
6. ParTec patent severed
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 article). The choice of the UPC, for its efficiency and pragmatism, was explained at a subsequent press conference (November 7, 2024 ip fray article).
ParTec asserted two patents in the same complaint:
- EP2628080 (“A computer cluster arrangement for processing a computation task and method for operation thereof”); filed in 2011
- EP3743812 (“Application runtime determined dynamical allocation of heterogeneous compute resources”); filed in 2019 and having unitary effect (i.e., it is enforceable in all EU member states that are part of the Unitary Patent System, which are presently
With respect to EP’812, there is an appeal pending with a Technical Board of Appeal (TBA) of the European Patent Office (EPO). The case registry now shows a new case (case no. ACT_9950/2025) filed on March 7 and involving the same parties. It appears that the court decided to sever that patent from the other case.
As in the original case, the registry lists Dr. Roman Sedlmaier of IPCGS as lead litigator. His name has recently been mentioned repeatedly because of two key decisions. The President of the CFI, Judge Florence Butin, agreed with ParTec and denied a request by NVIDIA to switch the language of proceedings to English (January 17, 2025 ip fray article). Many UPC litigators welcomed that one. And less than two weeks ago he won the already famous BSH Hausgeräte v. Electrolux case in the European Court of Justice (February 25, 2025 ip fray article) based on which the UPC now has long-arm jurisdiction over remedies relating to non-UPCland countries, at least to the extent that they are contracting states of the European Patent Organization.
7. Around the court
- There were 19 infringement complaints (a relatively high number for the UPC), but only 2 PI motions (an unusually low number) in February (LinkedIn post).
- The new judge of CD (Paris seat), Marjolein Visser, took the oath of office on Tuesday, March 4, 2025 (UPC news item).
- At a SEP conference in Warsaw, Poland, on Thursday (March 6) and Friday (March 7), two UPC judges spoke. The President of the CoA, Judge Dr. Klaus Grabinski, delivered a keynote in which he provided an overview of what the UPC has to offer and how it works. He also renewed the explicit invitation to Poland to join the UPC. He mentioned BSH Hausgeräte, but stopped short of telling the audience that the UPC was now in a position order remedies with respect to Poland at any rate. The Presiding Judge of the Mannheim LD, Judge Professor Peter Tochtermann, spoke on a panel with judges from other jurisdictions (March 7, 2025 ip fray article) and, in different and highly diplomatic terms, suggested to Lord Justice Richard Arnold of the England & Wales Court of Appeal exercise more restraint with respect to extraterritorial overreach. ip fray believes that short of a reversal by the UK Supreme Court, the UPC will have to defend itself against LJ Arnold’s judicial imperialism.
8. New cases
We mentioned the severed ParTec v. NVIDIA claim discussed in Section 6 above.
A couple of new Dusseldorf cases have shown up in the public case registry:
- Regeneron is suing Amgen over EP4252857 (“Methods for reducing lipoprotein(a) levels by administering an inhibitor of proprotein convertase subtilisin kexin-9 (pcsk9)”)
- Inficon is suing Elitech over EP3567356 (“Sniffing leak detector with switching valve and buffer chamber”)
Also, we reported on filings by Genevant Sciences and Arbutus Biopharma against Moderna’s mRNA-based COVID-19 vaccine (March 4, 2025 ip fray article).
9. Recent and upcoming hearings
Recent hearings:
- no hearings have taken place (at least according to the calendar on the UPC website) since the previous roundup, presumably attributable to carnival-related school holidays in Germany, where most UPC cases are pending
Upcoming hearings:
- Monday, March 10, 2025:
- Tiru v. Maguin SAS, Valinea Energie (Paris LD; application for order for inspection)
- Insulet Corporation v. EOFlow Co., Ltd and Insulet Corporation v. A. Menarini Diagnostics s.r.l (CoA; Rule 220.1 RoP appeal)
- Thursday, March 13, 2025: Seoul Viosys Co., Ltd v. Laser Components SAS (intervening party: Photon Wave Co.,Ltd.) (Paris LD)
- Wednesday, March 19, 2025: Hand Held Products, Inc. v. Scandit AG (Hamburg LD; application for provisional measures)
- Thursday, March 20, 2025: Bekaert Binjiang Steel Cord Co. & Ltd. v. Siltronic AG & Hinterberger GmbH & Co. KG (Dusseldorf LD; application for an order for inspection)
- Friday, March 21, 2025: Kinexon Sports & Media GmbH v. Ballinno B.V. (CD Paris; revocation action)
- Tuesday, March 25, 2025:
- Xiaomi v. Daedalus Prime (revocation; CD Paris)
- Viking Arm AS v. Stanley Black & Decker Sweden AB, Stanley Black & Decker Inc., Stanley Black & Decker Deutschland GmbH (Nordic-Baltic RD)
- Wednesday, March 26, 2025: Amazon v. Nokia (CoA, Rule 220.1 RoP appeal)
- Thursday, March 27, 2025:
- Lindal Dispenser GmbH v. Rocep-Lusol Holdings Limited (revocation; CD Paris)
- Grundfos Holding A/S v. Hefei Xinhu Canned Motor Pump Co., Ltd. (Dusseldorf LD)
- Thursday, April 3, 2025: Aylo Premium v. DISH (revocation; CD Paris)
- Friday, April 4, 2025:
- Hurom v. NUC Electronics (Paris LD)
- Edwards v. Meril (Munich LD)