UPC launch: Three weeks on, cases are steadily rising

The UPC cases filed so far are comprised of three revocation proceedings, two preliminary injunction applications, two application for preventative measures, and 14 infringement proceedings. It is also clear that Germany currently leads the way as regards parties filing infringement cases at the country’s local and central UPC divisions.

This is according to figures released by Munich-based IP firm Bardehle Pagenberg, which presented the UPC case figures so far in a joint event with JUVE Patent on 20 June.

Munich is the frontrunner with eight, while Düsseldorf, Hamburg, Milan and the Nordic-Baltic regional division have two apiece. So far the important patent locations of Mannheim, The Hague or Paris have no pending suits.

UPC revocation revs up

Despite the majority of filed proceedings so far being infringement, parties have filed some revocation actions at the central division in Munich. Sanofi-Aventis filed a revocation action against Amgen patent EP 3 666 797, while Astellas filed initially two revocation actions in Paris against patents owned by Japan-based Healios/Riken/Osaka University, and by Healios/Osaka University. EP 3 056 563 and EP 3 056 564 cover eye-restoration technology. However, reports and the current CMS listing suggest that the parties transferred the two cases to Munich from Paris.

This means there are three revocation claims pending at Munich’s central division while the Paris division so far has none. Alongside Paris and, most likely, Milan, the Bavarian capital plays host to one of the three central divisions. According to recent discussions, the Munich central division will hear cases concerning mechanical engineering, lighting, heating, weapons, and blasting, as well as temporarily taking over competencies for chemistry and metallurgy. While Ulrike Voß is heading the Munich central division, Florence Butin is the presiding judge in Paris.

It is not known who is representing Astellas in its attacks against EP 563 and EP 564. According to JUVE Patent information, patent attorneys from UK mixed firm Carpmaels & Ransford are leading the current UPC revocation action against Amgen’s EP 797 on behalf of Sanofi-Aventis.

Düsseldorf issues ex parte PI

UPC judges Sabine Klepsch, Ulrike Voß, Klaus Grabinski, Benedicte Thom, Ronny Thomas

Simmons & Simmons represents the plaintiff in the case involving an application for preventative measures at the Milan local division. The case relates to the mechanical engineering sector. So far, according to JUVE Patent sources, the CMS does not list which law firm represents the opponent. In Milan, Pierluigi Perrotti is the division’s presiding judge.

According to JUVE Patent information, the local division in Düsseldorf has issued an ex parte PI in connection with a trade fair this week. According to Hoyng ROKH Monegier, this was obtained by myStromer against Revolt Zycling AG at the EuroBike trade fair in Frankfurt this week. The firm is advising myStromer, together with Swiss patent attorneys IPrime, against its Swiss competitor in a dispute over suspension systems for e-motors in pedelecs (EP 2 546 134).

Infringement mostly in Germany

The distribution of the current cases across the UPC’s locations is also cause for discussion. Currently, eight cases are pending at the local division in Munich under presiding judge Matthias Zigann. Elsewhere in Germany, parties have filed two cases at the local division in Hamburg, where Sabine Klepsch is the legally qualified presiding judge, as well as two cases in Düsseldorf where Ronny Thomas leads the local chamber.

UPC Nordic-Baltic regional division ©Unified Patent Court

Milan’s local division can also count two filed cases. The Nordic-Baltic regional division under presiding judge Peter Agergaard, located in Stockholm, Sweden, is also the site of two further proceedings.

Life sciences leading the way

So far, figures show that the majority of infringement cases – eight – are in life sciences. This is at odds with some predictions prior to the start of the UPC, whereby many patent lawyers noted that clients were often choosing to opt out their life sciences patents. On the other hand, others had suggested the court might see a flurry of SEP cases.

Up to now, only five of the filed cases are in the hi-tech space. But so far only Philip’s three patents asserted against Belkin are relevant to the Qi standard. As yet, no party has filed a case over an SEP for mobile communications. The final case is reported to be an SME vs. SME case, which the parties filed on the first day of the UPC.

10x Genomics is seeking two PIs against NanoString’s CosMx Spatial Molecular Imager (SMI) instruments and CosMx reagents for RNA detection (EP 2794928 B1 and EP 4 108 782 B1). Bardehle Pagenberg acts for 10x Genomics, while it is very likely the German office of Bird & Bird is representing opponent NanoString. Both law firms are also acting on behalf of their clients in parallel national proceedings.

10x Genomics and Bardehle also filed an infringement suit at the local division in Hamburg against Vizgen’s MERSCOPE products for infringement of EP 4 108 782 B1. According to press reports, 10x Genomics had already filed a lawsuit against Vizgen in the US. It is not yet clear whether Vizgen will rely also on Bird & Bird or another firm.

A hot, cold location

Of the infringement proceedings, the German divisions are the location of most cases. In Munich, Amgen is going head-to-head with Sanofi-Aventis over cholesterol inhibitors, while Edwards Lifesciences is battling Meril Life Sciences over prosthetic valves for catheters. Amgen and Sanofi-Aventis are also fighting at the Nordic-Baltic regional division. Bardehle Pagenberg represents Amgen.

UPC Munich central division ©Unified Patent Court

While Carpmaels & Ransford is leading the revocation attack against Amgen’s patent, it appears that Sanofi-Aventis has not yet decided who will lead the infringement proceedings. In the national and EPO disputes, Hoffmann Eitle represented the company with a mixed team, along with Arnold Ruess and the patent attorney firm ZSP.

Swedish firm Gulliksson, alongside UK IP boutique Powell Gilbert, filed the claims for Edwards Lifesciences over EP 2 628 464 in Sweden. The German office of Bird & Bird, alongside Munich-based patent attorney firm Thum & Partner, also filed a UPC action for Edwards against Meril in Munich. Hogan Lovells, which is Meril’s main advisor in the parallel national proceedings, represents the company in both Germany, and at the Nordic-Baltic division.

Bardehle Pagenberg represents Philips against Belkin over wireless technology which is the subject of infringement actions at the Munich regional division. The patents at issue are EP 2 628 233, EP 2 867 997 and EP 2 372 863, covering wireless charging technology for the Qi standard. Belkin’s representatives are not yet known, although DLA Piper is representing Belkin in the parallel German national proceedings. It is thus likely that the firm is also acting in the UPC cases.

Self-driving car cases

Huawei has also filed a claim at the Munich local division over EP 3 611 989, which covers a method and apparatus for transmitting wireless local area network information. According to market information, a joint team of litigators from Clifford Chance and patent attorneys from Braun-Dullaeus Pannen Emmerling represents the global technology company.

Both law firms also regularly act for Huawei in German proceedings. So far, however, JUVE Patent has no further information about the UPC case specifically.

At the Hamburg local division, 10x Genomics, represented by Bardehle, has filed a suit against Vizgen’s MERSCOPE products for infringement of EP 782. Here, Broadcom and its sister company Avago are also going head-to-head with Tesla in a battle over EP 1 838 002, which covers a ‘programmable hybrid transmitter’. EP 1 612 910 is also at issue. According to JUVE Patent information, Grünecker and EIP represent Broadcom/Avago in one case, while Quinn Emanuel is acting for Elon Musk’s renowned automotive company.

Ocado and AutoStore up again

In Düsseldorf, Wildanger Kehrwald & Graf von Schwerin are advising Ocado in its claim against AutoStore over EP 3 795 501, a patent for a load-handling device. Arnold Ruess represents the online supermarket’s opponent in the ongoing national proceedings. Both law firms also represent their clients in national proceedings.

UPC Düsseldorf local division

JUVE Patent is not yet aware who the advisors are for AutoStore in further proceedings at the Milan division concerning EP 1 612 910, which covers an on-board power supply and power supply control monitoring circuit, and at the Nordic-Baltic regional division in Stockholm. The latter case concerns EP 3 653 540, which covers storage systems and methods for retrieving units from a storage system.

For Ocado, London-based firm Powell Gilbert is also active in the national UK proceedings. Thus, it is likely that the firm coordinates the UPC proceedings. Recently, the firm took to LinkedIn to announce its involvement in several UPC cases, although it did not name any clients.

Bathroom equipment manufacturer Kaldewei, represented by Arnold Ruess, has also filed an infringement case against competitor Bette at the Düsseldorf local division. Krieger Mes & Graf v. der Groeben represents Bette, with EP 3 375 337 covering a ‘sanitation bathtub device.’

Estimated valuations abound

Various sources report that the current cases are valued at between €500,000 and €10 million. One case is even said to be worth €100 million. While some have stressed that the court’s CMS is not yet as accurate as it could be, other sources such as a blog post published by Freshfields Bruckhaus Deringer do cite the CMS as providing the known figures so far.

Following significant problems with the CMS system in the opt-out phase, which continued after the launch, many observers will consider 20 cases a relatively steady start. However, most had expected significantly more, particularly SEP cases.

At present, it seems that companies are using the UPC to increase pressure on competitors in the context of ongoing pan-European disputes. In doing so, they are mostly relying on their regular counsel. Some law firms have not yet confirmed their participation in the first UPC cases, but JUVE Patent was able to verify numerous representatives. (Co-author: Mathieu Klos)