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.
October 2026
The SPC Manufacturing Waiver at the ECJ
This article examines the first reference to the Court of Justice of the European Union concerning the scope of the SPC Manufacturing Waiver under Article 5 of Regulation (EC) No 469/2009, as amended by Regulation (EU) 2019/933. It addresses and discusses the three disputed issues: (i) whether the export waiver covers manufacture followed by temporary storage within the Union for subsequent third-country export; (ii) whether a marketing authorisation in the country of export must already have been granted at the time of notification; and (iii) whether the intellectual property status in that country constitutes a substantive condition of the waiver. The article analyses these questions against the background of divergent German, Dutch and Belgian case law and also considers the UK High Court’s post-Brexit judgment in Regeneron/Alvotech. Based on the wording, structure, legislative history and purpose of Article 5, it argues against imposing additional substantive requirements that have no basis in the Regulation. As regards storage, the article proposes a functional distinction between the export and stockpiling waivers, focusing on the objective connection between manufacture, temporary storage and a concrete third-country export.
(Marco Stief, GRUR Patent 2026, page 518)
The legal framework governing UPC and German infringement proceedings is clear: (for example) a firstinstance injunction may be enforced under the applicable conditions. However, both forums and their respective rules of procedure provide for a preliminary “blocking” of said enforcement. While this option is important from the perspective of the rule of law, it is only relevant in specific cases – in which exactly? Following the overview of the case law in national proceedings (Part 1 – GRUR Patent 2026, 318), here is an overview of the current status at the UPC.
(Oliver Jan Jüngst and Moritz Schroeder, GRUR Patent 2026, page 491)
Conditional counterclaims for revocation before the UPC
This article examines the admissibility and strategic implications of conditional counterclaims for revocation in proceedings before the Unified Patent Court. Drawing upon first-instance decisions from the Mannheim, Munich and Paris Local Divisions, together with two orders from the Court of Appeal dated July 16 and August 17, 2026, the article analyses the doctrinal classification of such counterclaims as limitations under Rule 263.3 RoP by analogy. While conditional counterclaims improve procedural economy from the court’s point of view, they carry significant strategic disadvantages for defendants that are not outweighed by any material benefits.
(Felix Beck, GRUR Patent 2026, page 510)
On the purpose and consequences of the conditional counterclaim for revocation before the UPC
It has now been settled: Before the UPC, a defendant may make its counterclaim for revocation conditional on a finding of infringement. This article explains why this is admissible and criticizes the requirement to file aprecautionary appeal even after full success at first instance. The Court of Appeal should decide the counterclaim itself rather than refer it back. And a defendant who has been wrongly sued should not have to bear the costs of its defense.
(Joscha Torweihe, GRUR Patent 2026, page 502)
Since the last review of current developments in employee invention law (Bartenbach GRUR Patent 2025, 172 ff.), fortunately the courts and the Arbitration Board for Employee Inventions have published many interesting decisions addressing a wide variety of issues in the field. This article presents some of the most recent decisions. The Federal Court of Justice (BGH) is also represented by a decision regarding the statute of limitations for remuneration claims.
(Anja Bartenbach, GRUR Patent 2026, page 458)
For the first time, the UPC has adressed the question – which had also been the subject of intense debate in German law – of when a director is liable if his or her company infringes a patent. Whilst the Federal Court of Justice (BGH), in its Glasfasern II decision (BGH GRUR 2016, 257 – Glasfasern II), affirmed liability if the director fails to take sufficient steps to prevent an infringement, the UPC largely rejects such liability.
(Max Dregelies, GRUR Patent 2026, page 476)
Who is plaintiff in infringement cases at the UPC? And with what degree of success?
After the first 32 months of the UPC, it can be observed that the overwhelming number of infringement actions are filed by large companies. Although U. S. companies account for the largest share of plaintiffs, their success rate to date has been below average, unlike that of German companies, which account for the second-largest share. In terms of the success rate for main proceedings, the German divisions do not differ from the others; however, they grant preliminary injunctions more frequently.
(Eric Sergheraert and Aloys Hüttermann, GRUR Patent 2026, page 470)
The Unified Patent Court (“UPC”) has become an indispensable institution. It celebrated its third anniversary in mid-2026, a period marked by a steadily increasing number of important, clarifying decisions on a wide range of key issues. To date, the UPC has published over 2,200 decisions and orders; given this volume of information and decisions, it remain difficult to stay fully informed. This quarterly overview is designed to provide support in this regard.
(Klaus Haft, Sabine Agé, Giulia-Isabella Otten, Natali Goginashvili and Tim Robrechts, GRUR Patent 2026, page 430)
Actions for a declaration of non-infringement and infringement suits at the UPC
The UPCA provides for both an action for a declaration of non-infringement brought by the alleged infringer and for an infringement action brought by the patent owner. Yet, the relationship between these actions is not spelled out completely. The principle of res judicata leads to the conclusion that the declaration of noninfringement action is subsidiary to the infringement action where both concern the same alleged infringement. Furthermore, different from German doctrine, the burden of proof for non-infringement in declaration
proceedings falls on the claimant seeking the declaration. Those wishing to take the procedural initiative before the UPC should be familiar with the resulting scenarios and their practical implications.
(Michael Nieder, GRUR Patent 2026, page 466)
UPC Court of Appeal Case Law Review, Issue no. 7: Security for Costs, R. 158 RoP
The procedural device of security for costs has become one of the most developed areas of the UPC Court of Appeal’s case law. Over the past three years of practice, the CoA has formulated a coherent framework addressing standing, the substantive test, burden of proof, timing, amount, means of security, and appellate review. Unlike other procedural topics that have emerged bottom-up from Local Division practice, security for costs is an area where the CoA itself established the standard early on. This article analyses the leading decisions, identifies the principles that have crystallised, and offers practical guidance for parties and practitioners navigating R. 158 RoP applications before the UPC.
(Michael Plagge, GRUR Patent 2026, page 386)
R 16/23 – Confirmation of the right to oral proceedings under Article 116(1) EPC
Successful petitions for review under Art. 112a EPC are exceedingly rare; truly curious sets of facts are too; and when a decision combines both, it definitely deserves a discussion in the GRUR Patent. That is precisely the case here with decision R 16/23, in which a petition for review succeeded and led to the referral of the matter back to the Board of Appeal.
(Thorsten Bausch, GRUR Patent 2026, page 407)
The use of national unfair competition law against the “divisional game”
With the European Commission’s (EC) decision of 31 October 2024 to fine the pharmaceutical company Teva for, inter alia, misuse of the possibility of filing divisional applications with the European Patent Office (EPO), this strategy employed by patent holders has come under closer scrutiny. Although the EC based its decision on competition law, this is not the only possible remedy available against such misuse. Earlier this year, one of the two patent litigation chambers of the Regional Court Munich I would have enjoined a pharmaceutical company from further pursuing its “divisional game” had the proceedings not been settled. This article examines the remedies that national courts can provide.
(Florian Schweyer, GRUR Patent 2026, page 391)
The article examines the extent to which the so-called Overseas Countries and Territories (OCTs) are covered by the Unitary Patent System. It first addresses whether these territories fall within the territorial scope of protection of European patents and European patents with unitary effect, and whether the Unified Patent Court may take them into account in its decisions. It then considers whether the territorial scope of the Agreement on a Unified Patent Court itself extends to OCTs.
(Thilo A. W. Krumm, GRUR Patent 2026, page 395)
Economic Perspectives on the UK Court of Appeal’s Approach to FRAND in Optis/Apple
In this paper we examine key economic issues arising from the UK Court of Appeal’s decision in Optis/Apple, issued in May 2025 and currently on appeal to the UK Supreme Court, with a particular focus on the court’s approach to valuation.
(Fei Deng, Michael De La Paz and Jeremy Evans, GRUR Patent 2026, page 412)
Dealing with ‘immediate bench judgments’ without a statement of facts or grounds for the decision
The German Code of Civil Procedure (ZPO) allows the court to declare an enforceable judgment without the simultaneous delivery of written reasons. This practice is known as a Stuhlurteil (immediate bench judgment). In patent infringement cases, it gives rise to a protection gap, particularly in SEP disputes: The defendant is compelled to comply with the judgment without knowledge of its underlying reasoning, which substantially impedes effective recourse in stay-of-execution proceedings under § 719 ZPO. This article analyzes the procedural framework governing the Stuhlurteil doctrine, the exercise of judicial discretion in selecting the mode of declaration, and the consequences of non-compliance with the statutory time limit for the court’s subsequent delivery of the grounds of the decision. Drawing on the constitutional guarantee of access to effective judicial protection, the article proposes a solution that enables defendants to apply for a stay of execution even where the written reasons remain outstanding.
(Thomas Kühnen, GRUR Patent 2026, page 379)
The UPC's long arm in cases involving defendants from third countries
For the first time, the UPC’s Court of Appeal refers questions on the interpretation of Union law to the CJEU. At the heart lies the (urgent) jurisdiction over patent infringement committed by third state defendants in states outside the UPCA’s scope. This article analyses the jurisdictional aspects of the referral to the CJEU and also looks at the additional grounds for “long arm”-jurisdiction re. third state defendants.
(Paul Lepschy, GRUR Patent 2026, page 358)
The correct defendant in patent infringement proceedings
This article addresses the question of who may and should properly be sued as a defendant in patent infringement proceedings. The authors set out the doctrinal framework, survey the recurring problem areas encountered in practice, and situate the relevant case law of the German courts and the Unified Patent Court. The aim is to offer practitioners guidance on correctly identifying the proper defendants.
(Jonathan Hechler and Lars Hessmann, GRUR Patent 2026, page 324)
Life Science Corner - The suspension of enforcement proceedings in German and UPC proceedings – Part 1
The legal framework governing UPC and German infringement proceedings is clear: a first-instance injunction (for example) may be enforced under the applicable conditions. However, both forums and their respective rules of procedure provide for a preliminary blocking of the enforcement. While this option is important from the perspective of the rule of law, it is only relevant in specific cases – in which exactly? An insight into German and UPC procedures in two parts.
(Oliver Jan Jüngst and Moritz Schroeder, GRUR Patent 2026, page 318)
A U. S. View on the UPC: Necessity and Irreparable Harm
In both the UPC and U.S. courts, patent owners can request that the court enjoin an accused infringer from continuing the allegedly infringing activities while regular patent infringement proceedings are ongoing – a “provisional injunction” in UPC terminology, a “preliminary injunction” in the U.S. In assessing such requests, courts in both jurisdictions ask what the reason for the urgency is – why should the patent owner not wait for the orderly completion of the main proceedings? This question is reflected in key elements for issuing provisional injunctions: “Necessity” in the UPC and “irreparable harm” in the U.S. The following compares the characteristics of, and recurring facts used in assessing, these elements in the two jurisdictions.
(Georg Reitboeck, GRUR Patent 2026, page 351)
Recognition of qualifications from third countries - The Achilles’ heel of the UPC’s long-arm jurisdiction?
An order of the UPC‘s Local Division Mannheim of 30 January 2026 could significantly dampen the enthusiasm surrounding long-arm jurisdiction in European patent litigation if its para. 47 were to be understood as meaning that the imposition of a penalty payment by the UPC for a violation occurring in a third country is contingent upon that country's recognition of the underlying UPC order. This would be particularly detrimental in the case of AASIs and AILIs; if disregarded, they would remain without consequences for the opposing party, since the third country would under no circumstances recognize the AASI or AILI. The following analysis examines this question in the context of the UPCA provisions governing the enforcement of decisions and orders of the Unified Patent Court.
(Michael Nieder, GRUR Patent 2026, page 331)
You are currently viewing a placeholder content from Facebook. To access the actual content, click the button below. Please note that doing so will share data with third-party providers.
You are currently viewing a placeholder content from Instagram. To access the actual content, click the button below. Please note that doing so will share data with third-party providers.
You are currently viewing a placeholder content from X. To access the actual content, click the button below. Please note that doing so will share data with third-party providers.
