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.
September 2026
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)
Liability under patent law – and a critical analysis of the Belkin v Philips ruling by the UPC appeals court
With Belkin/Philips, the UPC Court of Appeal, for the first time, has outlined the principles of liability of corporate directors and officers under the Unitary Patent system. This article attempts a systematic analysis, demonstrating in particular that the shielding of directors and officers against liability for patent infringement as endorsed by the Court lacks a normative foundation in the UPCA. Furthermore, it can be shown that Belkin/Philips has created a gap in the framework for patent liability. Indeed, the restriction of officer liability to cases of willful conduct and positive knowledge may create a risk of circumvention.
(Tim W. Dornis, GRUR Patent 2026, page 335)
In its “FRAND Objection III” decision, the German Federal Court of Justice (BGH) has further refined its case law on the antitrust compulsory licence objection. The ruling is consistent with prior decisions. Still, the question arises whether the standards adopted are conducive to the development of the FRAND procedure. This article demonstrates that the broad discretion afforded to the SEP holder in making the initial offer, coupled with the unresolved basis for calculating an adequate security, risks undermining the behavioural-economic steering effect of the FRAND procedure. Consequently, a clear position on these issues would be desirable.
(Matthias Rothkopf and Samuel Walsh, GRUR Patent 2026, page 291)
Non-reproducible products as prior art: Decision G1/23 and its application by the EPO’s Boards of Appeal
This article analyses how the Boards of Appeal of the EPO apply the landmark decision G 1/23 in practice, with a particular focus on decisions T 1719/21 and T 1044/23. Both Boards have established a key distinction in this regard: the question of what needs to be modified in a non-reproducible prior art product is part of the inventive thinking required to solve the problem, but is not a consideration when selecting the starting point in the problem-solution approach. Furthermore, the Boards clearly distinguish non-reproducible commercial products from speculative disclosures and make it clear that G 1/23 only introduces tangible, physical products as relevant prior art – not hypothetical disclosures.
(Jan van Dieck and Andreas Obermeier, GRUR Patent 2026, page 301)
On infringers, instigators, accomplices and intermediaries – regarding the decision of the UPC appeals court in Belkin v Philips
In its decision of October 3, 2025, in the case of Belkin v. Philips, the UPC Court of Appeal provided initial guidance on who may be considered an “infringer” within the meaning of Article 63 in conjunction with Article 25 UPCA, and thus, in particular, who is liable as an instigator, accomplice, or assistant, and under what require ments the legal representatives of legal entities are liable under patent law. The decision is of considerable significance given the vague wording of the relevant provisions. The following discussion addresses this issue.
(Michael Nieder, GRUR Patent 2026, page 295)
Confidentiality under Rule 26a UPC RoP when submitting comparative licence agreements in SEP proceedings
The disclosure of comparable licence agreements in SEP proceedings raises complex issues of confidentiality before the UPC. In two decisions dated January 26, 2026, the Court of Appeal of the UPC further clarified the framework for confidentiality orders under Rule 262A RoP, in particular with regard to confidentiality clubs, the involvement of party representatives and employees, and the protection of legitimate third-party interests. This article analyses the key considerations underlying that case law, offers a critical assessment of the approach adopted by the Court of Appeal, and develops practical implications for the future handling of comparable licence agreements in SEP proceedings.
(Cordula Schumacher and Mennan Eker, GRUR Patent 2026, page 285)
UPC Digest, Issue no. 7: The content of disclosure
The disclosure of documents is decisive in many cases for the validity of patents. At this critical juncture of substantive law too, the UPC has by now established sufficient legal certainty at the appellate level and given it practical substance at the first-instance level. In outcome, the UPC is largely aligned with the European Patent Office; however, the focus going forward is on the skilled person — both on the legal act of determining who that person is and on their (actual) knowledge. As little as one should expect major legal battles to be fought here, so much does the dispute open up in individual cases: the criteria have been worked out, and now they must be applied.
(Volkmar Henke and Martin Drews, GRUR Patent 2026, page 279)
This year in June, the Unified Patent Court (“UPC”) celebrated its third anniversary. Over the past three years, the Court has successfully established itself by issuing nearly 2,000 published decisions and orders, marking an important step in the European integration process in the field of patent litigation. Patent law is increasingly shaped by the extensive body of case law from the Court of First Instance and the Court of Appeal on important procedural and substantive legal issues. At the same time, it has become increasingly difficult to remain fully informed. Our quarterly overview is meant to assist with this task.
(Klaus Haft, Sabine Agé, Giulia-Isabella Otten, Natali Goginashvili and Tim Robrechts, GRUR Patent 2026, page 255)
Clarification of the principles governing FRAND defences
This article analyses a recent decision concerning the FRAND defence. The 7th Civil Chamber of the Munich Regional Court I dismissed said defence, primarily on the grounds that the security provided by the defendant fell short of the requirements and that the defendant would also have been obliged to make a partial payment.
(Oliver Bäcker and Marc Beringer, GRUR Patent 2026, page 235)
European courts as “worldwide super infringement courts”?
The decision of the Court of Justice of the European Union in case C-339/22 (BSH Hausgeräte GmbH/Electrolux AB) gives rise to the broader question of whether and to what extent the jurisdiction of national courts in the field of patent law extends to companies established abroad. The essay examines whether the ECJ ruling expands the international jurisdiction of national courts to such an extent that they effectively function as “worldwide super infringement courts”. The actual implications are illustrated using a recent case as an example. Subsequently, the question of which law is applicable is addressed. Finally, a procedure for dealing with validity proceedings is proposed.
(Katalin Tözsér, Florian Schweyer and Oliver Schön, GRUR Patent 2026, page 220)
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