Context: Car makers regularly find themselves on the receiving end of patent assertions, also in the Unified Patent Court (UPC) (see, e.g., this Septembr 17, 2024 ip fray article). Some Chinese companies are very successful in the electric vehicle (EV) market, though geopolitical frictions may adversely affect their sales in the European Union.
What’s new: XPENG is the first Chinese car manufacturer to be sued in the UPC. In the Paris Local Division (LD), steel giant ArcelorMittal, which is headquartered in Luxembourg though to a large extent an Indian company, is asserting EP3290200 (“Coated steel strips, methods of making the same, methods of using the same, stamping blanks prepared from the same, stamped products prepared from the same, and articles of manufacture which contain such a stamped product”).
Direct impact: ArcelorMittal may want to force, through this patent enforcement campaign XPENG to source certain steel products from them. The lawsuit appears aggressive: the 17 named defendants include, besides various XPENG entities, resellers such as Dusseldorf-based Moll and Luxembourg’s Hedin. This is clearly an injunction play.
Wider ramifications: While the patents asserted against automakers (in the UPC and generally) cover a wide range of technologies, there are presently no disputes over 5G standard-essential patents (SEPs). Most of the car makers incorporating 5G technology into their cars have opted for the one-stop Avanci license (October 9, 2024 ip fray article). One (still unnamed) Chinese car maker took a 5G license directly from Nokia. Eventually they will all need SEP licenses in order to continue to sell in Europe.
With the case just having been filed, there is not a lot to say about it yet. But it is a safe assumption that more Chinese EV makers will get sued in the UPC, over a wide range of technologies.
ArcelorMittal is represented by French IP boutique Lavoix’s Camille Pecnard. Mr. Pecnard’s first name is shared by the Paris LD’s female Presiding Judge Camille Lignières. The name Camille is gender-neutral, which often leads to confusion. The older a person named Camille is, the more likely to be male (2020 Le Monde article). Given that they will all address each other formally in court, it won’t complicate communications.
The other members of the panel are Judge Carine Gillet and Judge Rute Lopes (from Lisbon, Portugal). For now it’s an all-female panel, but they may not find an “iron lady” among Technically Qualified Judges, and this patent will almost certainly require the appointment of a TQJ.
It’s one of relatively few cases pending in the UPC for which French was chosen as the language of proceedings, but XPENG will presumably request a switch to English, the language of the patent. The UPC is struggling to achieve linguistic and geographic diversity. The latter may happen over time as the Court of Appeal (CoA) clarifies one legal question after the other, thereby also making “remote” locations more attractive. but the former is due in no small part to the CoA’s case law. The typical UPC litigation these days takes place in English and on German soil. English and German are sometimes treated as interchangeable: this week’s major UPC SEP trial in the Munich LD was held in English (October 30, 2024 ip fray article), though the written pleadings were all filed in German as the primary language, with only non-binding English translations.