JUVE Patent
Legal news ticker in cooperation with GRUR
Legal news ticker in cooperation with GRUR
JUVE Patent and GRUR Patent bring you the latest news and developments concerning European and UPC patent law.
March 2026
The temporal jurisdiction of the Unified Patent Court – Part 2
The Agreement on a Unified Patent Court (UPCA) does not contain any explicit provisions on the extent to which the Unified Patent Court (UPC) has jurisdiction in infringement proceedings for acts of use that occurred before the UPCA came into force on 1 June 2023. Nor does the UPCA explicitly stipulate whether acts of use from the period prior to 1 June 2023 are subject to the UPCA or the relevant national patent laws of the Contracting Member States (CMS). Following a series of first-instance decisions, the Court of Appeal of the UPC has affirmed its temporal jurisdiction for acts of use that occurred before 1 June 2023 in an independent damages procedure and an infringement procedure, respectively. According to the case law of the Mannheim Local Division (LD) and the Düsseldorf LD, the substantive law of the UPCA also applies in most cases to acts of use from the period prior to 1 June 2023. This article examines the extent to which the current case law of the UPC on temporal jurisdiction and the applicability of the UPCA in the period prior to 1 June 2023 is consistent with Union law and public international law. Of particular interest in this context is the prohibition of retroactive effect under Union law and the principle of non-retroactivity under public international law. Part 1 of the article explained these fundamental principles of Union law and public international law and outlined their relevance to the UPC. Part 2 is devoted to the question of how the jurisdictional clause of Article 32(1) (a) UPCA regarding infringement actions is to be interpreted in the light of the prohibition of retroactive effect and the principle of non-retroactivity. The question of whether in proceedings before the UPC the infringement of a European patent is dealt with under the UPCA or under the national patent law of a CMS or a third State plays a decisive role in this regard. Part 3 will analyse how to deal with acts of use that began before the entry into force of the UPCA and continued thereafter, i. e. so-called “continued acts”.
(Simon Klopschinski, GRUR Patent 2026, page 90)
The Editors’ Choice – EPO (BoA), Borealis Technology Oy/The Dow Chemical Company
The Board of Appeal’s decision highlights the relevance of procedural principles. One of these principles is the power of the boards to review procedural decisions of the first instance. Another principle relates to the parties’ opportunities to present their case in inter partes proceedings. Aspects of the decision consider a so-called “carry-over request”, which was admitted as an auxiliary request in the first instance, but where the admission was overturned in the appeal proceedings and the carry-over request was eventually not admitted to the appeal proceedings. Another aspect considers the admissibility of prior art as an amendment to the appeal.
(Matthias Grob, GRUR Patent 2026, page 2)
UPC Digest, Issue no. 6: Burden of presentation and proof
The burden of presentation and proof governs the parties' obligations to present facts and (in case of dispute) to prove the accuracy of those facts. This sounds like purely procedural law, but the significance of the burden of presentation and proof extends far beyond the specific procedural situation: Systematically, the burden of presentation and proof determines the standing of the principle of party disposition, which in turn can ensure a fair trial. In practice, the burden of presentation and proof determines the scope of the proceedings, the procedural tactics and strategy, and often its outcome. Especially the “front-loaded approach” of the UPCA, which is more pronounced compared to national legal systems, and the resulting fear of some parties that the UPC would have a particularly strict regime for late submissions, have often led to very extensive pleadings in the early stages of the proceedings and—on the other hand—have encouraged petty (not necessarily successful) objections of delay. It was sometimes surprising to observe that even legal arguments were included in the burden of presentation, and one might wonder whether the principle of “iura novit curia” had been forgotten clandestinely. Recent decisions of the Court of Appeal show signs of a liberal approach that attempts to balance the principle of “iura novit curia” with the goal of expeditious proceedings and the principle of a “fair trial”. We will illuminate this in this issue of the UPC Digest and provide an overview of the case law to date on the burden of presentation and proof.
(Martin Drews and Volkmar Henke, GRUR Patent 2026, page 50)
UPC Court of Appeal Case Law Review, Issue no. 5 – CoA decisions in the life sciences sector
This paper analyses the first decisions of the Court of Appeal (CoA) of the Unified Patent Court (UPC) in the life sciences sector.
(Lars-Fabian Blume and Anna-Lena Dwillies, GRUR Patent 2026, page 58)
UPC examination approach to inventive step and setting the course for proportionality
The article analyzes the “Edwards v. Meril” decision of the Court of Appeal of the Unified Patent Court (UPC) and its significance for the doctrine of inventive step. In the UPC’s approach, the objective problem plays a central role: it reflects the contribution of the invention to the prior art, takes into account the inventive concept disclosed in the patent, and provides the key basis for selecting a realistic starting point for assessing obviousness. This approach shows a parallel to German case law, where the problem serves a similar purpose and, in the words of the Board, supports a “holistic” assessment of inventive step. Unlike at the EPO, the objective problem does not change if a different starting point is considered, since it does not depend on any starting point, but rather justifies the choice of such a starting point and thus fulfils a fundamentally different function. However, the UPC’s reasoning also departs from German patent practice, for example with regard to proportionality.
(Rainer Engels and Markus Ackermann, GRUR Patent 2026, page 66)
Life Science Corner: The summary procedure at the UPC in practice – Part 1
In economic competition, time is not everything, but it is very valuable. Basically the same applies to competition between jurisdictions: of course, decisions should be “correct,” but the parties usually also want legal certainty quickly. That is why summary proceedings are and remain of paramount importance (not only) for the UPC. At least some questions have now been clarified by the Court of Appeals, but others still remain unanswered. In two parts, therefore, material issues will be discussed first, followed by specific procedural issues.
(Oliver Jan Jüngst and Moritz Schroeder, GRUR Patent 2026, page 2)
The temporal jurisdiction of the Unified Patent Court – Part 1: Fundamentals
The Agreement on a Unified Patent Court (UPCA) does not contain any explicit provisions on the extent to which the Unified Patent Court (UPC) has jurisdiction in infringement proceedings for acts of use that occurred before the UPCA came into force on 1 June 2023. Nor does the UPCA explicitly stipulate whether acts of use from the period prior to 1 June 2023 are subject to the UPCA or the relevant national patent laws of the Contracting Member States (CMS). Following a series of first-instance decisions, the Court of Appeal of the UPC has affirmed its temporal jurisdiction for acts of use that occurred before 1 June 2023 in an independent damages procedure and an infringement procedure, respectively. According to the case law of the Mannheim Local Division (LD) and the Düsseldorf LD, the substantive law of the UPCA also applies in most cases to acts of use from the period prior to 1 June 2023. This article examines the extent to which the current case law of the UPC on temporal jurisdiction and the applicability of the UPCA in the period prior to 1 June 2023 is consistent with Union law and public international law. Of particular interest in this context is the prohibition of retroactive effect under Union law and the principle of non-retroactivity under public international law. Part 1 of the article explains these fundamental principles of Union law and public international law and outlines their relevance to the UPC. Part 2 is devoted to the question of how the jurisdictional clause of Article 32(1)(a) UPCA regarding infringement actions is to be interpreted in the light of the prohibition of retroactive effect and the principle of non-retroactivity. The question of whether in proceedings before the UPC the infringement of a European patent is dealt with under the UPCA or under the national patent law of a CMS or a third State plays a decisive role in this regard. Part 3 analyses how to deal with acts of use that began before the entry into force of the UPCA and continued thereafter, i. e. so-called “continued acts”.
(Simon Klopschinski, GRUR Patent 2026, page 7)
The Unified Patent Court (UPC) is emerging as a key forum for SEP and FRAND disputes, yet its authority to set FRAND rates remains only partly defined. This article examines whether, and under what conditions, the UPC may determine global FRAND rates focusing on procedural hurdles such as the party disposition principle, judicial discretion, territorial scope and the Huawei/ZTE compliance. Furthermore, a recent order by the Local Division Paris confirms jurisdiction for counterclaims but leaves critical questions unresolved including whether stand-alone FRAND rate-setting actions are admissible beyond counterclaims in infringement actions. This article will shed light on how the UPC’s evolving role could reshape licensing practices and forum selection.
(Jochen Herr, Nikita Alymov and Martin Nothmann, GRUR Patent 2026, page 18)
Departing from the approach established in G 1/92 for assessing whether a publicly available product is state of the art, the Enlarged Board of Appeal holds in ist decision G 1/23 that the requirement of reproducibility is met if a product is commercially available. Public availability alone suffices, irrespective of whether the skilled person is able to manufacture the product. This article analyses the legal reasoning of G 1/23 and ist implications for novelty and inventive step. Lessons are drawn for inventors seeking patent protection for newly developed products and their competitors relying on commercially available products as prior art.
(Carsten Richter, GRUR Patent 2026, page 30)
G 1/24 has been one of the most eagerly awaited decisions in 2025, considering that a large number of different Technical Boards of Appeal at the EPO generated a bunch of diverging case law over decades when it came to the question whether the description and drawings of a patent must be considered for assessing the subject matter of the claims. With its decision G 1/24 (GRUR-RS 2025, 13433 – Heated Aerosol Generating Article; Hütt GRUR Patent 2025, 336), the Enlarged Board of Appeal aimed at ensuring a uniform application of the EPC and decided that the description and drawings are always referred to when interpreting the claims, and not just in the case of unclarity or ambiguity of the claims. As after every major decision the question arises whether everything has been clarified now. The short answer to this question is “No”. It is the subsequent case law after a landmark decision which refines, interprets and adapts the precedent to different technical contexts and legal scenarios. About half a year after decision G 1/24, the principles of this decision have already been put into practice by dozens of Technical Board of Appeal decisions. Thus, it is time for an interim assessment.
(Felix Hütt, GRUR Patent 2026, page 25)
Artificial intelligence in patent law – revolution or evolution?
The use of artificial intelligence (AI) in patent attorney firms promises significant efficiency gains and quality improvements – from research and patent applications to opposition and infringement proceedings. This article provides a practice-oriented examination of concrete AI applications in patent attorney work, discussing the professional and economic benefits, the legal framework, and the technical limitations of AI language models. Finally, the question is discussed: Does AI represent an evolutionary development for the patent attorney profession or even a revolution?
(Sebastian Goebel, GRUR Patent 2025, page 592)
The Editors’ Choice – UPC (CoA.), 3.10.2025 - Belkin/Philips
In its second ever appeal decision in main infringement actions, the Court of Appeal tackled, among other matters, a popular instrument of patent proprietors to exert pressure on infringers: the personal liability of company directors. The Court of Appeal held that it is not sufficient for a director to have general knowledge of the circumstances which lead to the infringement. Rather, a director must be aware of the unlawfulness of the act. This marks a departure from what practitioners know from certain national jurisdictions, where personal liability of directors is more easily established.
(Benedikt Dellen and Volkmar Henke, GRUR Patent 2025, page 608)
No “interpretative somersaults” at the EPO – another step towards a uniform European interpretation practice
A claim should not be interpreted, based on features set out in embodiments of an invention, as having a meaning narrower than the wording of the claim as understood by the person skilled in the art. In cases of discrepancy between the claim language and the description, it falls upon the patentee to remedy this incongruence by amending the claim. It is not the task of the Boards of Appeal to reach such alignment by way of interpretative somersaults.
(Robert Schnekenbühl, GRUR Patent 2025, page 603)
The Unified Patent Court – a case law overview VII
2025 is coming to an end, and 2026 marks the start of the third year of the Unified Patent Court (“UPC”), which, with around 1,500 published decisions and orders, has established itself as one of the preferred courts for patent litigation. Applying the Rules of Procedure (“RoP”) and the UPC Agreement (“UPCA”), the UPC strives to find practical solutions to procedural and substantive legal challenges, making it of paramount importance for the development of new uniform patent law and harmonizing procedural law across Europe. It therefore continues to be useful to provide an overview in order to facilitate access to the Court's case law on the RoP and the UPCA.
(Klaus Haft, Sabine Agé, Giulia-Isabella Otten, Natali Goginashvili, and Alix Fourmaux, GRUR Patent 2025, page 579)
The Editors‘ Choice – UPC (LD Düsseldorf), 10.4.2025
The decision of the LD Dusseldorf addresses several key issues: The focus is on the interpretation of product-by-process claims. The court also examines jurisdiction over actions that took place before June 1, 2023, and prior to an opt-out and determines that the UPCA applies also to ongoing acts that began before its entry into force while national law applies to compensation claims arising from the patent application. Lastly, the LD comments on the commencement of the limitation period.
(Diana Lydia Baum and Richard Wunderlich, GRUR Patent 2025, page 615)
Regional Court Munich I – Anti-Interim License Injunction (AILI)
On 26 September 2025, the Regional Court Munich I, 21st Civil Chamber issued a landmark decision in the InterDigital/Amazon video licensing dispute: It handed down the first ever Anti-Interim License Injunction (“AILI”). The injunction was issued ex parte. Apparently, there was the concern that hearing the defendant could lead to ex parte counter-measures from the UK torpedoing the Munich case. Only four days later, the UPC Local Division Mannheim issued a similar AILI (docket number UPC CFI 936/2025, GRUR-RS 2025, 31129). Amazon requested in both cases a re-hearing. The Mannheim rehearing took place on 14 November 2025, but the decision has not yet been handed down. In Munich, the rehearing took place on 26 November 2025, and the judgment was handed down same day. The AILI was confirmed, and the court made remarkably distinct statements on international private law and jurisdiction for license rate determination.
(Clemens-August Heusch, GRUR Patent 2025, page 600)
Territorial scope of decisions on the infringement of European bundle patents under Article 34 UPCA
According to Art. 34 UPCA, in the case of a European patent, the decisions of the UPC cover the territory of those contracting member states for which the European patent has effect. This article examines the question of whether it is sufficient for this cross-border effect to be proven in only one country of protection that there is an imminent or actual infringement. A decision of the Local Division of Mannheim dated March 11, 2025 raises doubts about this.
(Michael Nieder and Jasper Werhahn, GRUR Patent 2025, page 542)
The Editors' Choice – UPC (LD Hamburg), August 14, 2025 – UPC CFI 387/2025, GRUR-RS 2025, 25175
The Hamburg Local Division confirms the broad international jurisdiction claimed by the UPC. It specifies the conditions for the inclusion of defendants based outside the EU and cross border injunctions. Therefore, the LD specifies the scope of application of Art. 8 (1 Regulation (EU) No 1215/2012 (“BR”) and the conditions under which a company can be considered an intermediary according to Art. 63 (1) 2nd sentence UPCA. It is a clear signal that the UPC is willing to grant far-reaching injunctions.
(Stephan Dorn and Leon Beismann, GRUR Patent 2025, page 558)
The Editors’ Choice – UPC CoA 228/2025, GRUR-RS 2025, 26146 – Roku International/Sun Patent Trust
The defendants had disputed the jurisdiction of the UPC with arguments under EU law and, in the alternative, requested a referral to the ECJ. They had also objected to the replacement of London by Milan as a division of the Central Division as incompatible with the UPCA and had derived from this an argument of the lawful judge at the UPC Local Division seized. The latter and the court of appeal rejected both arguments and rejected the application for a referral.
(Winfried Tilmann, GRUR Patent 2025, page 552)
Aggregate Royalty for Cellular SEPs in Recent Court Decisions
Standards organizations developing cellular communication standards typically require participants to disclose standard essential patents (SEPs) and agree to license such patents on fair, reasonable, and non-discriminatory (FRAND) terms. When courts are asked to adjudicate license disputes involving SEPs, they often calculate the implied aggregate royalty for all SEPs in the relevant standard associated with a potential license. We review five recently litigated FRAND cases and report the aggregate royalties for the 4G and 5G cellular standards that can be derived from these cases. We find that the aggregate royalty per mobile device in most of these decisions falls in a range from $3 to $16, with an average of $9.25. The aggregate royalty by the UK Court of Appeal in Optis/Apple is an outlier at $39.47.
(Nadia Soboleva and John Hayes, GRUR Patent 2025, page 546)
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