Summary of the seven UPC Cases

Copenhagen Local Division

26 August 2024

00:26 – 11:49

Ex parte application for preserving evidence (Rule 182 RoP) in a non-seizure country context.

• Danish claimant (Hebrid General) sought preservation measures against former business counterparties.
• Former employee joined a defendant; alleged use of know-how to infringe a patent.
• Court relied on a presumption of infringement supported by social media photos (Facebook/LinkedIn) and a light claim-feature table.
• Risk cited of destruction/transfer of electronic evidence outside Denmark.

• Rule 182 RoP (applications for preserving evidence).
• Ex parte relief based on risk of evidence loss; security required.

• Request granted in full on an ex parte basis.
• IT expert appointed to assist bailiff; report ordered.
• Security set at €7,000.

• Demonstrates a comparatively low evidentiary threshold and readiness to grant ex parte preservation in Denmark, akin to practices seen in France/Italy/Belgium.

Nordic-Baltic Regional Division

17 February 2024

09:24 to 15:20

Whether to notify defendants and proceed inter partes before granting preservation measures; handling of confidentiality and costs after withdrawal.

• Court indicated intent to inform defendants; applicant maintained the request.
• Defendants objected with detailed technical non-infringement evidence.
• Applicant withdrew the application after reviewing the evidence.
• Defendants sought confidentiality measures and costs.

• RoP provisions permitting pre-grant involvement of defendants in preservation requests.
• Recoverable cost ceilings tied to case value; distinction between attorney fees and other costs.

• Confidentiality ordered over defendants’ technical submissions; non-disclosure obligation imposed on applicant.
• Attorney-fee ceiling held to be joint (approx. €40,000)

• Demonstrates UPC’s procedural difference from traditional seizure jurisdictions (France/Belgium) where defendants are never informed at preliminary stage
• Establishes that cost ceilings are joint, not per-party
• Shows high cost risk (€40,000) for unsuccessful seizure applications compared to traditional seizure countries

Munich Local Division

19 February 2025

15:24 to 24:07

• Application for preserving evidence
• Effect of undisputed facts
• Obligation to commence main proceedings

• Swarko owned patent for optics in city traffic signs; alleged UNEX infringed by installing Chinese products in city
• Swarko already possessed sample and expert opinion confirming infringement
• Sought seizure only to prove installed products were identical to sample
• UNEX stated it had « no reason to doubt » identity claim but argued no infringement

• Rule 171 ROP (undisputed facts)
• Rule 284 ROP (prohibition on misrepresenting facts)
• Rule 198 ROP (obligation to commence main proceedings)

• Court deemed product identity an undisputed fact despite lack of express admission
• UNEX precluded from later denying identity or producing counter-evidence (abuse of rights)
• request rejected as dispensable/non-necessary; applicant still required to commence main proceedings within 31 days under Rule 198 despite rejection

• Establishes that facts not specifically disputed are deemed undisputed (Rule 171)
• Parties cannot simply deny their own actions without substantiation; creates binding effect of « undisputed facts » in subsequent main proceedings
• Resolves procedural conundrum by requiring main proceedings even when seizure request rejected but applicant achieved desired outcome

Munich Local Division

20 December 2024

25:00 to 30:04

Request for access to ongoing proceedings by third-party competitor

• Main case between Phoenix Contact and Industria Lombarda
• Harting (competitor) was being sued by Phoenix in Germany on related utility models (not same patent)
• Harting filed EPO opposition against patent, joined by Industria Lombarda
• Harting requested access to UPC pleadings and evidence

• Distinction between access to concluded vs. ongoing cases
• Requirement of specific interest outweighing parties’ interests for ongoing cases

• Access denied based on German utility model proceedings (different rights, different products)
• Access granted based on EPO opposition proceedings (same patent)
• Arguments on patent interpretation and prior art documents relevant to EPO opposition
• Rejected claimant’s argument that defendant’s participation in opposition made Harting’s access unnecessary

• Clarifies that parallel EPO opposition proceedings provide sufficient specific interest for access to ongoing UPC proceedings; national proceedings on different rights (utility models vs. patent) insufficient
• Third party’s lack of control over another party’s use of UPC documents supports access
• Demonstrates lenient approach to access when EPO opposition pending

Nordic Baltic Regional Division

23 January 2025

30:14 to 32:29

• Request for access by individual/company
• Allocation of costs for access requests

• Pharmaceutical case between Edwards and Merrill
• Physical person requested access to ongoing case
• Parties objected and requested costs; applicant later clarified acting for himself and SWAT Medical company
• Requested amendment of application
• Applicant withdrew application
• Merrill requested decision on costs

Cost allocation rules for access requests

No legal basis exists for ordering member of public who requests access to reimburse legal costs; request for access is always cost-free for applicant

• Establishes important principle that access requests carry no cost risk for applicants, even if unsuccessful or withdrawn
• Contrasts with general litigation cost rules
• Encourages transparency by eliminating financial barrier to access requests

Paris Central Division

11 February 2025

32:33 to 34:10

Request for access based on professional/general legal interest

• Case between Swino and Microsoft involved orders addressing in-house EPA (European Patent Attorney) issues
• Institute of Professional Representatives before EPO requested access to ongoing case
• Argued interest in defending in-house EPA interests
• Parties did not oppose but left to court’s discretion

• Requirement of specific (not general) interest for access to ongoing proceedings
• Integrity of proceedings standard

• Access denied
• Applicant’s interest purely legal and of general nature
• Knowledge of specific case facts deemed irrelevant to general legal interest
• Professional interest insufficient for access to ongoing case

• Establishes that purely legal or professional interests of general nature do not constitute sufficient specific interest for accessing ongoing proceedings
• Distinguishes between general policy interests and case-specific interests required for access

Milan Local Division

20 February 2025

34:10 to the end

• Request for access to support stay of proceedings in parallel case
• Distinction between general and specific interest

• Oerlikon sued Bagat (Indian company) for infringement
• Bagat did not defend, was condemned, ordered to pay 80% costs
• Bagat appealed and requested suspensive effect (denied for lack of substantiation)
• Oerlikon separately sued Himson Engineering (another Indian company) on same patent
• Himson defended itself
• Bagat requested access to Himson case to support stay request in its own appeal
• Settlement negotiations ongoing between Oerlikon and Himson

• Specific interest requirement for access to ongoing proceedings
• Integrity of proceedings standard; publicly available information doctrine

• Access denied; Bagat’s stated specific interest was only parallel stay request
• Bagat failed to use publicly available information (CMS showed auxiliary requests, prior art cited in orders)
• Potential interference with settlement negotiations between Oerlikon and Himson
• Bagat had not challenged validity or infringement in its own case, limiting specific interest
• Costs cannot be imposed on access applicants

• Reinforces distinction between general and specific interest established in prior Court of Appeal decisions
• Access applicant must utilize publicly available information before requesting full access
• Court considers potential interference with settlement negotiations as integrity concern
• Confirms cost-free nature of access requests
• Demonstrates limits of « specific interest » when applicant failed to defend in own case