Germany: Patent

Headnote: The claimant’s legitimate interest in the publication of a decision (Art. 80 UPCA) may, depending on the circumstances of the individual case, follow from the fact that the defendant has marketed the attacked embodiment by explicitly referencing to the key technology protected by the patent

For late-stage interim relief requests (Art. 62 UPCA, R. 206-211 RoP), urgency has a specific meaning: the applicant must prove a new, escalating risk justifying immediate action.

An intangible data stream, like a video bitstream, is a “product” under Art. 25(a) and 25(c) UPCA, allowing direct enforcement of encoding patents against streaming services. There is no relevant difference between data on a physical carrier and data transmitted over a network; the carrier has no technical significance for the data’s use. The bitstream is therefore a product under Art. 25(a) UPCA despite the absence of a data carrier (para. 174).

When assessing the requirement for a procedural security, namely the question whether the Claimant has “sufficient means” to compensate the Defendant for the legal costs incurred in the proceedings, only the financial situation of the Claimant should be taken into consideration, but not the financial situation of the holding company behind the Claimant.

The qualification of a party as an SME or the submission of a declaration purporting to establish a party’s SME status pursuant to R. 370.8 RoP is not, in itself, sufficient to dispense with the obligation for said party to provide a security for costs in accordance with R. 158 RoP, if the requirements for the application of that rule are met.

The European Patent Office faces a critical procedural question: should patent descriptions be consulted when interpreting claims for added subject matter assessments, following the precedent set in G 1/24? A new referral to the Enlarged Board of Appeal seeks clarity on claim interpretation methodology and the conditions for admissible referrals.

The appellants’ representative understood French but lacked sufficient oral proficiency for optimal representation. The Court permitted both parties to plead in English at the hearing of 26 May 2026, while French remained the language of proceedings.

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A review under R.197.3 RoP only benefits the party that files it; co-defendants who do not seek review remain bound by the original order