European Union: Patent

The Paris Central Division has ruled that UPC actions can be filed for patent applications nearing grant, potentially invalidating opt-outs filed after proceedings commence. This decision raises critical questions about the timing of opt-out filings and the scope of UPC jurisdiction over pending applications.

In decision T 1186/24, the EPO Board of Appeal reiterated that a European patent claim covering multiple alternatives must enable each of them to be carried out across the entire claimed scope. A single alternative introduced by "or" can thus undermine a patent's validity if it is not sufficiently disclosed, as Charles-Henri Bertaux explains.

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This case examines the liability of an EU Authorized Representative under the Medical Device Regulation as an intermediary in patent infringement proceedings, even when they are not direct infringers. The court addresses critical procedural questions including deemed acceptance of jurisdiction, the consequences of non-attendance at oral hearings, and the discretion to refuse stays despite pending CJEU referrals.

The Düsseldorf Local Division partially upheld a patent relating to multimedia content sharing in peer-to-peer configurations and found indirect infringement by Disney's streaming service. The decision addresses critical issues of claim construction, patent validity, and procedural aspects while applying established UPC case law on inventive step testing.

The Court of Appeal of the Unified Patent Court addresses the procedural requirements for obtaining suspensive effect when filing an application for rehearing under Article 81(2) UPCA. The decision clarifies that suspensive effect is not automatic and requires independent substantiation beyond the grounds for rehearing itself, with applicants needing to demonstrate concrete, irreparable prejudice to justify departure from the default rule of continued enforceability.

R. 222.2 RoP only allows the Court of Appeal to disregard new facts and evidence, not new legal arguments. Since claim construction is a question of law, the appellant could challenge the first instance’s claim interpretation by raising a new legal argument on appeal.

Granting leave to amend at a late stage would allow the applicant to change its litigation strategy after the fact. A diligent patentee should coordinate its EPO and UPC positions from the beginning, rather than reacting once parallel proceedings develop unfavorably.

The Local Division Düsseldorf of the Unified Patent Court issued an order addressing applications for protection of confidential information in patent infringement proceedings between Yangtze Memory Technologies and Micron Technology entities. The case involves European Patent EP 3 909 047 with jurisdictional implications across Germany and France under the UPC Agreement.