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.
April 2026
The first authorisation pursuant to Article 3(d) of the SPC Regulation
Article 3(d) of the SPC Regulation demands that the underlying marketing authorisation constitutes the first authorisation for the product concerned. The Federal Patent Court has asked the CJEU whether a first veterinary marketing authorisation satisfies this condition even where a prior human medicinal product authorisation had already been granted for the same active substance. The article endorses the court’s tendency to treat both regulatory regimes as giving rise to independent “first authorisations”.
(Marco Stief, GRUR Patent 2026, page 174)
The Editors’ Choice – UPC (Court of Appeal), November 28, 2025 – Barco/Yealink
The Court of Appeal of the Unified Patent Court addresses several key aspects of proceedings for provisional measures. In particular, it refines the rules on competence by confirming that Rule 19.5 RoP applies mutatis mutandis where the seised local division lacks competence, allowing referral to another competent division designated competence is a matter of UPC organisation rather than amatter governed by the Brussels I Recast Regulation. The Court further clarifies that there is no hierarchy between Art. 33(1)(a) and (b) UPCA and defines the level of substantiation required when pleading competence. It also provides guidance on the urgency requirement, especially where provisional measures are sought in connection with applications for a unitary patent. Finally, the Court sets out guiding principles on interim cost awards in provisional measures proceedings.
(Diana Baum and Richard Wunderlich, GRUR Patent 2026, page 190)
The EU-SPC proposals – a further compromise suggestion
Regarding the (new) proposals of the regulations concerning supplementary protection certificates, a compromise proposal is presented which foresees a kind of “EUIPO-WIPO” model together with an appeal before an interdisciplinary appeal board.
(Filip De Corte and Aloys Hüttermann, GRUR Patent 2026, page 177)
In BSH/Electrolux, the EUCJ reinforced the jurisdiction of the court of the defendant’s domicile in infringement proceedings. The exclusive jurisdiction of the courts of the EU Member State where the patent was granted over patent revocation proceedings does not preclude this, even if the defendant intends to challenge the validity of the patent – a step which must be taken in the Member State of grant. However, the Court also held that, in an infringement action based on a patent granted by a third country, the court of the defendant’s domicile has jurisdiction to decide, with effect inter partes, on the invalidity of the patent in suit raised as a defence. This article examines the question of whether, and to what extent, such jurisdiction is compatible with the lex loci protectionis which is decisive for the validity of the patent.
(Petermeier-Beck, GRUR Patent 2026, page 163)
‘Pay-for-delay’ agreements in the pharmaceutical sector as unlawful restrictions on competition
In its 23 October 2025 judgment Teva/Cephalon, the CJEU, following the General Court, upheld the Commission's decision of 26 November 2020, which had classified a "pay-for-delay" settlement agreement between the two pharmaceutical companies Teva and Cephalon as a restriction of competition by object within the meaning of Article 101 TFEU and had imposed a fine of €30 million on each undertaking. The judgment aligns with the line of CJEU cases established in Generics (UK), Lundbeck, and Servier, and confirms a strict approach towards agreements by which patent holders seek to forestall generic market entry through pay-for-delay arrangements. The case sharpens the criteria for assessing the benefits that generic manufacturers accept in exchange for withdrawing from the market and thereby provides an occasion for a stocktaking analysis.
(Maik Wolf, GRUR Patent 2026, page 181)
Confidentiality under procedural law applies only to information introduced into the proceedings
The Federal Court of Justice clarifies that the protection of trade secrets under section 145 a German Patent Act (PatG) in conjunction with sections 16–20 Trade Secrets Act (GeschGehG) is unavailable for information that must be disclosed to substantiate a claim asserted in the litigation if that information is not introduced into the proceedings. However, the issue – contested in the case law of the lower courts and in academia – of whether such protection may subsequently be granted in enforcement proceedings for information and accounting data that have been made the subject of a title has not yet been resolved.
(Axel Oldekop, GRUR Patent 2026, page 187)
Life Science Corner: The Summary Procedure at the UPC in Practice – Procedural and Practical Aspects (Part 2)
The UPC's initial orders and decisions have been eagerly awaited and discussed due to the substantive legal issues raised: What is the threshold for a PI, how is a claim interpreted, and what about the risk of imminent infringement (and much more)? For practical application, however, procedural issues are of the same crucial importance. Hence, the following second part of the Summary Proceedings at the UPC is devoted to these.
(Oliver Jan Jüngst and Moritz Schroeder, GRUR Patent 2026, page 169)
Front-loaded but ‘manageable’: On limiting and prioritising challenges to the legal status quo
The bioMérieux/Labrador decision of the Central Division of the Unified Patent Court requires the party challenging the patent to prioritize and, if necessary, even limit the number of invalidity attacks in order to ensure that the proceedings can be managed by the court. This reveals a conflict with the front-loaded approach and its requirement for early, comprehensive submissions. Practitioners are faced with a dilemma. A restriction on the number of attacks appears questionable due to the complexities of alternative interpretations and auxiliary requests. Therefore, a complete presentation that is to avoid preclusion must be reconciled with the need for clear structure and prioritization. The demands on the quality of the lawyer’s submissions are increasing.
(Ralf Emig, Sebastian Dworschak and Konstantin Werner, GRUR Patent 2026, page 145)
The temporal jurisdiction of the Unified Patent Court – Part 3: Continuing acts
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 was 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 138)
The author explains, following his article in GRUR 2025, 1705, the detrimental effects of designating SPCs as “rights sui generis” when it comes to the creation of a Unitary SPC (USPC) affiliated with the Unitary Patent.
(Winfried Tilmann, GRUR Patent 2026, page 135)
The Unified Patent Court – a case law overview VIII
The third year of the Unified Patent Court (“UPC”) has begun, and with the expansion of several divisions, the continued appointments of judges, and around 1,700 published decisions and orders, the UPC has established itself as an important and popular forum for international patent disputes. Based on the large number of decisions and orders handed down by the Courts of First Instance and the Court of Appeal, the UPC is constantly evolving. It therefore continues to be useful to provide an overview in order to facilitate access to the Court's case law on the Rules of Procedure and the UPCA.
(Klaus Haft, Sabine Agé, Giulia-Isabella Otten, Natali Goginashvili and Alix Fourmaux, GRUR Patent 2026, page 106)
Annual review 2025: Decisions of the Boards of Appeal of the EPO
The report provides an overview of noteworthy decisions issued by the EPO Boards of Appeal in 2025. In view of the large number of decisions issued in 2025, this review is based on decisions relating only to substantive patent law.
(Kemal Bengi-Akyürek and Frédéric Bostedt, GRUR Patent 2026, page 120)
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)
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