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.
July 2025
Practical implications of BSH v Electrolux for resolving global patent disputes
Until recently, the following practical rule applied (with a few exceptional cases in the Netherlands in interim proceedings): 39 EPC Member States – theoretic need for 39 infringement actions. This rule changed when the UPC opened its doors on 1 June 2023 offering a one-stop-shop for patent disputes in the EU, centralizing infringement and revocation proceedings for meanwhile 18 Contracting Member States. And it changed again in spring 2025 with the ruling of the CJEU in BSH v Electrolux offering a one-stop-shop litigation solution also for the remaining nine EU Member States, the remaining 12 non-EU members of the EPC, and in fact any third state when dealing with EU-domiciled defendants. This article analyses practical implications of the ruling on the level of national courts as well as on the UPC level from a claimant’s and a defendant’s perspective. Some open questions are addressed and a short outlook is provided.
(Tilman Müller-Stoy and Paul Lepschy, GRUR Patent 2025, page 331)
First instance proceedings in UPC appeal proceedings
Unlike German civil proceedings, proceedings before the UPC Court of Appeal are not bound by the facts established in the first instance. The submissions of the first instance are not part of the subject matter of the proceedings before the UPC Court of Appeal, as described in Rule 222 (1) of the Rules of Procedure. This article intends to clarify for the appeal instance how the parties are to deal with facts, evidence and arguments submitted in the first instance.
(Michael Nieder, GRUR Patent 2025, page 314)
The IFA's patent examination obligations when listing medicines in the Lauer Taxe
IFA is the central information service provider for the pharmaceutical sector and operates the IFA database, on which the so-called Lauer tax is based, which provides information on the orderability of a drug. In a recent decision (GRUR-RR 2024, 269), the Munich I Regional Court affirmed a patent obligation and liability of IFA if patent-infringing generics are listed in the Lauer tax. However, the establishment of a comprehensive audit obligation would overload the IFA in its current form, according to the author. In weighing up the conflicting interests, IFA's duty to examine can only be assumed in exceptional cases if the possibility of a direct patent infringement is immediately obvious to IFA by means of a substantiated notice and the validity of the asserted patent has also been confirmed in adversarial proceedings.
(Marco Stief, GRUR Patent 2025, page 308)
The article critically examines the two-year practice of the Unified Patent Court (UPC) and identifies a number of legal issues, in addition to terminology, as worthy of discussion. Overall, the UPC's performance since its inception has been commendable – but there is always room for improvement.
(Winfried Tilmann, GRUR Patent 2025, page 271)
The cost regime implications of UPC CoA order in Syngenta vs Sumi Agro
In the Court of Appeal’s order UPC CoA 523/2024, the Court ruled for the first time that a decision on costs may follow on the conclusion of preliminary injunction proceedings even if there still exists a pending action on the merits. The implications of this order are examined in this article.
(Filip De Corte and Aloys Hüttermann, GRUR Patent 2025, page 317)
It is time to celebrate the second anniversary of the Unified Patent Court (“UPC”), which began its work on June 1, 2023, and has since received almost 900 cases. After two years, around 1,100 decisions and orders of the Court of First Instance and the Court of Appeal have already been published, clearly demonstrating that the Court has successfully established itself as a new forum in the European patent system. Numerous procedural orders continue to be issued, strengthening case law on procedural issues, as well as an increasing number of orders and decisions addressing the question of comprehensive international jurisdiction beyond the UPC Member States. At the same time, an increasingly complete case law on material patent law emerges. It therefore continues to be useful to provide an overview in order to facilitate access to the Court's guidelines on the UPC Agreement (“UPCA”) and the Rules of Procedure (“RoP”).
(Klaus Haft/Sabine Agé/Giulia-Isabella Otten/Natali Goginashvili/Alix Fourmaux, GRUR Patent 2025, page 281)
Spotlight on: The language of proceedings before the Unified Patent Court – Part 2
Continuing from the first part of this two-part essay (GRUR Patent 2025, 241), this second part highlights the options for changing the language of proceedings before the Unified Patent Court. The main focus is on language change requests by only one party of the proceedings, which have already been the subject of numerous orders. Drawing on established legal precedents, in particular the orders of the Court of Appeal, the likelihood of success for such requests can now be assessed with considerable accuracy.
(Holger Hiss and Julian Fischer, GRUR Patent 2025, page 298)
In this, the fourth edition of our UPC Digest, we turn to a core topic in every patent dispute – defining the extent of protection conferred by a patent on its claimed teaching. Patent interpretation is involved in virtually every patent dispute, and for practitioners it is sometimes the crux around which proceedings revolve. It requires thorough formulation of good arguments – in most cases without any exemplary models. It should therefore come as no surprise that the first decisions on the merits handed down by the Unified Patent Court relate primarily to patent interpretation issues. Our discussion below provides an overview of the initial case law of the Unified Patent Court. As it turns out, many of the principles elaborated so far are neither unexpected nor unknown. The Court of Appeal set a clear direction in this respect at an early stage.
(Martin Drews and Volkmar Henke, GRUR Patent 2025, page 226)
UPC Court of Appeal Case Law Review, Issue no. 2 – Necessity of ordering provisional measures
The ordering of provisional measures must be necessary to prevent an imminent infringement of a patent or to provisionally terminate the continuation of an alleged infringement. This paper examines the first decisions of the Court of Appeal on the requirement of necessity. Based on the decisions in Mammut v. Ortovox, Abbott v. Sibionics, Biolitec v. Light Guide Optics, and Sumi Agro v. Syngenta, key temporal and factual aspects are identified which the CoA takes into account when assessing the necessity of provisional measures to arrive at a case-by-case decision, including the weighing of interests to be carried out under Art. 62(2) UPCA. Although the CoA’s case law has not yet settled the dispute between the German Local Divisions on the question of when an application is still urgent from a temporal point of view, it is all the more insightful concerning the substantive aspects of necessity. Among other things, decisive factors include direct competition, the timing of market entry, seasonal product characteristics, the threat of price erosion, and the lack of enforceability of damages. The CoA’s case law shows a strong case-by-case approach, which generally aims to preserve the status quo and avoid irreparable harm. This promotes legal certainty within the scope of the UPCA and provides important guidance for practitioners when dealing with summary proceedings.
(Diana Rodriguez, GRUR Patent 2025, page 234)
The European (bundled) patent – the long arm of the Unified Patent Court
The article discusses the UPC-competence to decide and the bases for its decision in proceedings regarding the infringement of a European (bundle) patent in third countries outside the EU as well as in EU member states that do not participate in the UPCA or have not yet ratified it. In this context, the article discusses the decisions of the CJEU of 25 February 2025 (BSH Hausgeräte/Electrolux) and the Local Division Düsseldorf of the UPC of 28 January 2025 (Fuji/Kodak) as well as the orders of the UPC Court of Appeal of 26 February 2024 (10xGenomics/NanoString) and the UPC Local Divisions Paris of March 21, 2025 (Mul-T-Lock/IMC Création) and Milan of April 8, 2025 (Alpinestars/Dainese).
(Michael Nieder, GRUR Patent 2025, page 254)
Only a matter of time? – UPC issues first anti-anti-suit injunction
Close to 18 months after the introduction of the Unified Patent Court (UPC), the Munich Local Division has issued the first Anti Anti-Suit Injunction (AASI) of the new court system. After some initial hesitation, the number of disputes around standard-essential patents (SEPs) before the UPC has increased notably of late. AASIs have become a household appearance in SEP disputes, at least in Germany. Therefore, this development is not surprising. Still, the first decision of the UPC was awaited with great interest, not least with a view to how the new court would justify this instrument. It remains to be seen, however, whether the development in Germany will repeat itself or whether the Court of Appeal will take a different path.
(Bolko Ehlgen, GRUR Patent 2025, page 249)
Spotlight on: The language of proceedings before the Unified Patent Court – Part 1
The language of the proceedings was one of the key issues on the way to establish unitary patent protection. It remains one of the ‘ongoing litigation issues’ in court practice to date. The first part of this two-part essay examines the legal background and illustrates how the language of proceedings is to be determined. The second part will then focus on the practically relevant questions regarding the change of the language of proceedings.
(Holger Hiss and Julian Fischer, GRUR Patent 2025, page 241)
In practice, there are competing situations between the patent owner’s intellectual property rights and the position of his contractual partner under private law. In addition to the mere use of the protected subject matter of the contract by the purchaser, warranty rights such as self-performance or a right to self-help sale derived from dispositive law should be considered. In the absence of an explicit provision, such as the granting of a license, the question nevertheless arises as to whether the patent always prevails over contract law. Based on the manifestations and prerequisites of patent law grants of use – from the license to simple consent – typical competing situations are described on the basis of case studies and suggestions for solutions are developed.
(Sebastian Wündisch, GRUR Patent 2025, page 220)
The Editor’s Choice – UPC (Court of Appeal), order of 18.9.2024
The Luxembourg Court of Appeal's decision pertains to the change of the language of the proceeding from German to English. The Court of Appeal determined that, given the original institution of the proceedings in German, the language of the proceedings should be English to ensure fairness and because it is the language of the patent in suit. The parallel national cases of the parties are not relevant for determining the language of the proceedings.
(Selin Russo, GRUR Patent 2025, page 196)
The Editor’s Choice - CJEU (Grand Chamber), order of 25.2.2025
In its BSH Hausgeräte decision, the CJEU clarifies a question of international jurisdiction that is particularly relevant for cross-border patent litigation. The court seised in the defendant’s domicile does not lose jurisdiction as a whole in case the defendant raises a plea of invalidity. It may stay proceedings or rule with inter partes effect for patents valid in third states.
(Roland Müller and Sebastian Dworschak, GRUR Patent 2025, page 188)
“Export” of a national prior right to use to other UPCA states?
Pursuant to Art. 28 UPCA, the possibility of the defendant to defend itself with an internal right of prior use in UPC proceedings is governed by national law. The article examines, using the examples of Germany, France, Italy and the Netherlands, whether and under what circumstances the prior user manufacturing in the state of the seat of the UPC division seised can also invoke an internal right of prior use for its distribution abroad.
(Michael Nieder, Tilman Pfrang and Jasper Werhahn, GRUR Patent 2025, page 184)
Better late than never? Delay/preclusion in the UPC
The longer the UPC has been established, and the more proceedings are progressing, the more frequently the question of late filing or preclusion of arguments by the parties will arise. In complex cross-border proceedings, it is well known that something (supposedly) highly relevant almost always happens somewhere, and sometimes a focus of the discussion may simply shift in the course of a legal dispute. But for how long will this be taken into account at the UPC? The following article offers an introduction to the practice.
(Oliver Jan Jüngst and Moritz Schroeder, GRUR Patent 2025, page 179)
In the past year, the Arbitration Board for Employee Inventions again published a large number of settlement proposals dealing with a wide range of aspects regarding employee invention law. In addition, the much-discussed decision “DABUS“ of the German Federal Supreme Court, which deals with the use of artificial intelligence, may have an impact on employee invention law. Another recent decision of the German Federal Supreme Court concerns the claim according to Section 23 of the German Employee Invention Act. This article reviews some of the recent decisions.
(Anja Bartenbach, GRUR Patent 2025, page 172)
Current German SEP/FRAND practice – an overview with a focus on the "Sprachsignalkodierer" decision
A lot has happened in the SEP/FRAND universe in the last months. The Court of Appeal for England and Wales has opened an avenue for declaratory judgments on interim FRAND licenses in a series of three decisions closely following one another. The Commission has intervened in a Munich case with amicus curiae observations on its view concerning the correct interpretation of the CJEU’s Huawei/ZTE judgment. The Munich Higher Regional Court has reacted to this intervention with an advisory decision to the parties on how the court currently plans to go forward in the ongoing proceedings – meanwhile it has followed up on this decision in its recent judgment of March 20, 2025. Last but not least, the UPC (Mannheim and Munich Local Division) have issued their first SEP/FRAND judgments. This article focuses on the Munich proceedings and discusses the advisory decision of the Munich Higher Regional Court – the recent judgment follows up along the lines of that earlier decision. All these considerations serve as a springboard to further consider perspectives for German practice as well as the possible need for another reference to the CJEU.
(Matthias Leistner, GRUR Patent 2025, page 136)
Annual review 2024: Decisions of the Boards of Appeal of the EPO (part 2)
The report provides an overview of noteworthy decisions issued by the EPO Boards of Appeal in 2024. In view of the large number of decisions issued in 2024 (over 1,700 decision and 3,000 cases settled), this review is based on decisions relating only to substantive patent law and is divided into two parts. The first part was published in the previous issue; this is the second part.
(Kemal Bengi-Akyürek and Frédéric Bostedt, GRUR Patent 2025, page 124)
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