This is a quick summary of ip fray‘s UPC-related LinkedIn posts on the first two calendar days of this week (July 29 and 30, 2024).
Alexion v. Amgen and Alexion v. Samsung Bioepis: preliminary injunctions denied, no accelerated appellate proceedings for lack of sufficiently press reason
It is now officially confirmed that Alexion Pharmaceuticals failed to win in the Hamburg Local Division preliminary injunctions against Amgen and Samsung Bioepis. It also turns out that the lower court set the value of the dispute at 100 million euros in either case. The Court of Appeal’s Panel 1c denied Alexion’s motions for accelerated appeals as the arguments were just that the company wanted to obtain patent protection at the earliest opportunity and that the sole question on appeal was allegedly a purely legal one.
Admission of late-presented equivalence-based infringement theory not manifestly wrong
An unnamed individual plaintiff made an equivalence-based infringement argument only in the reply brief. Defendants Orthoapnea and Vivisol wanted the Court of Appeal to intervene at this stage so they wouldn’t have to address the allegedly inadmissible theory in their rejoinder. While President Dr. Klaus Grabinski held that an order by the CoA may have suspensive effect with respect to a filing deadline like this, no stay was ordered. The substantive question was referred to the panel, but the defendants will have to live with the fact that litigants make or address arguments in their pleadings that may later turn out irrelevant.
Costs must be sought in lower court even if some or all of them relate to appellate proceedings
For the Court of Appeal, Judge Peter Blok held that an order on costs must be requested in the Court of First Instance, even if it is in whole or in part about the costs of proceedings in the CoA.
Amended versions of challenged patent claims may include elements of non-challenged claims; and new invalidity contentions are untimely if they could have been brought in revocation claim
The Paris Central Division upheld, in an amended form, a Carrier Corporation patent challenged by BITZER Electronics. The decision explains that a patentee may not amend non-challenged claims in a revocation proceedings, but is free to incorporate elements of challenged claims into amended versions of challenged claims. Apparently that has no limit and even if all elements of a a non-challenged claim are incorporated into an amended version of a challenged claim, the Paris CD deems the proposed amendment admissible.
BITZER presented some invalidity contentions at a later stage, but according to the Paris CD couldn’t explain why it didn’t bring them as part of the revocation claim. Therefore, those theories were deemed inadmissible.
No shortcut for service of process on defendants based in China and its Hong Kong Special Administrative Region
NEC tried to effectuate service of process on TCL by email, which the Munich Local Division’s and now also the Court of Appeal’s second panel rejected, as they did the proposal to just put a notice on the Munich LD’s wall. NEC must first attempt to serve the complaint in accordance with the Hague Convention. Some TCL defendants are based in Europe and have already been served. Only if there was a major delay concerning service on a Chinese defendant would alternative forms of service be considered.
Agreement on attorneys’ fees shielded from public access, but opposing party gets to see it
In another decision by the Paris CD, a party wanted to completely seal an agreement on attorneys’ fees that may be relevant in connection with a decision on necessary fees, arguing that the other party could obtain information that would impact ongoing settlement negotiations. Judge-rapporteur Professor Maximilian Haedicke sealed the document only to the extent that the general public won’t get access, but the opposing party will have the opportunity to review it so it can develop its argument on necessary fees.
The Hague Local Division applies Ocado v. AutoStore on access to documents
In a case in which a decision by the first-instance court is under appeal, a third party (UK law firm Powell Gilbert) nevertheless gets access to the pleadings, over the litigants’ “succinct” (because they probably knew they wouldn’t prevent anything) objections.