The previous UPC Roundup was published one week ago (September 27, 2024 ip fray article). This one goes live around noon on Friday, October 4, 2024, so there could still be developments in and around the UPC later that day. It’s a summary of ip fray‘s LinkedIn posts reporting and commenting on UPC news over the course of the week. To the extent that UPC developments are covered in dedicated articles, they are not part of the weekly roundups.
1. Court of Appeal denies Xiaomi’s petition to appeal Mannheim LD’s case management order shortly before potential trial
Despite delays caused by the need to resolve sealing and confidentiality club questions (June 13, 2024 ip fray article), the Mannheim LD managed to avoid limiting next week’s Panasonic v. Xiaomi trial to purely technical questions. But it took a solution that, for example, the Munich LD does not consider an option under the governing rules: pleadings were split up into technical and non-technical (i.e., FRAND) parts.
The panel affirmed the related decision (September 11, 2024 ip fray article). Xiaomi appealed, and the CoA did not want to overrule the court below, particularly not this close to the actual trial date.
Therefore, the decision does not definitively resolve the question of whether pleadings can be split up into different parts and put on different schedules. It’s fair to say that the CoA was not outraged, but it doesn’t mean that the same approach would necessarily be affirmed in a situation where there might be more time.
In practical terms, the UPC and German parts of the Panasonic v. Xiaomi dispute are dead lawsuits walking after yesterday’s decision by the England & Wales Court of Appeal (EWCA) (October 3, 2024 ip fray article). Xiaomi is rightfully licensed, and Panasonic already anticipated its appellate loss and made a recent offer referenced in the decision. The UK FRAND determination will relate to both future use of Panasonic’s standard-essential patent (SEP) portfolio and any compensation for past use (back-royalties). Therefore, there are no remedies left that Panasonic can actually pursue in the UPC or Germany. It’s all about costs, and even the UPC’s and German courts’ cost decision is not going to be the last word: Xiaomi can seek damages against Panasonic for its bad-faith actions and its breach of a commitment to a UK court, and those damages would obviously include litigation expenses, probably even the full amount and not the capped amount that the UPC would likely award.
This does not mean to say that UK courts could derail any UPC or German SEP case, nor would they want to (comity matters to them, without a doubt). But in this case, both parties committed to the resolution of their FRAND dispute in the UK, and that fact effectively disposes of any infringement actions. The UPC and German courts can still hear a long list of Panasonic v. OPPO cases.
2. Interventions
2.1 Access Advance allowed to intervene in another dispute
After a Dolby v. HP case in Dusseldorf (June 26, 2024 ip fray article), the Munich LD has now allowed pool administrator Access Advance to intervene in NEC v. TCL.
TCL tried to raise creative arguments against the intervention and, in an apparent attempt to stall, in favor of a referral of a legal question to the European Court of Justice. But to no avail.
2.2 Italian distributor not allowed to intervene in preliminary injunction proceeding
A mere de facto interest in the outcome of a parallel proceeding was insufficient to justify an Italian distributor’s intervention in a case against its supplier. The distributor is a defendant to a PI motion over the same patent in the Milan LD, while the Korean supplier is defending against a parallel PI motion in the Milan seat of the CD.
3. Two more non-practicing entities ordered to provide collateral
NPEs that can’t demonstrate valuable assets beyond a small number of patents now have to assume that the UPC will order them provide security to large defendants like Microsoft and Samsung.
4. Oral hearing in Hague main proceedings: attorney’s observations
The Hague LD heard Plant-e Knowledge B.V.; Plant-e B.V. v. Arkyne Technologies S.L. on Monday: the first hearing in a main proceeding before that LD. Dutch attorney Oscar Lamme of Simmons & Simmons shared some impressions and observations on LinkedIn that ip fray decided to repost.
5. Five new cases discovered in case registry
- (link to LinkedIn post)
- Avago (Broadcom) v. Stellantis (Hamburg LD)
- Wobben Properties v. Detect Global (Hamburg LD)
- HybridGenerator ApS v. INFOTECH CONCEPT APS, Rune Eilertsen and HGSystem ApS (Copenhagen LD)
- (link to LinkedIn post)
- Visibly v. easee (Hamburg LD)
- CUP&CINO Kaffeesystem Vertrieb GmbH & Co. KG v. ALPINA COFFEE SYSTEMS GmbH (Dusseldorf LD) (a follow-up to a PI motion that failed last year in Vienna, now over three patents)
6. Case count surpassed 500
It’s nothing short of a major achievement that more than 500 cases have been file din the UPC so far, among them almost 200 infringement proceedings. Could the number be higher? Yes, some experts expected an even faster ramp-up. There still is a lot of growth potential.
It is not antithetical to the idea of a Europe-wide judicial body, but certainly not a state of affairs that would be satisfactory in a few years’ time, that only two LDs (Munich and Dusseldorf) have received a solid majority (58%) of all infringement filings. Also, there are relatively few cases in languages other than English and German, and that will be difficult to change when even large defendants can easily have the language of proceedings switched to the language of a patent-in-suit.