Summary of the Four UPC Decisions

Court of Appeal of Luxembourg

April 30, 2026

00 : 13 to 11 : 23

Whether Adobe could appeal a security for costs order without prior authorization from the court of first instance

• KEEEKS brought patent infringement action against Adobe
• Adobe requested security for costs order; Paris Local Division granted order for €50,000 (Adobe sought €2.5 million)
• Adobe appealed without prior court authorization

Rule 220 ROP (1 and 2) and Rule 158.3 regarding admissible appeals and security for costs orders

• Orders for security for costs cannot be appealed directly under Rule 220.1
• Prior authorization from court of first instance required, or appeal must be joined with decision on merits
• Adobe’s appeal inadmissible
• Court order’s incorrect reference to Rule 220.1 did not constitute authorization
• Adobe knew of the mistake and should have requested proper procedure

Establishes strict procedural requirements for appealing interlocutory orders and clarifies that court orders stating appeal rules do not constitute authorization

Milan Central Division

May 4, 2026

11 : 25 to 28 : 09

Whether a patent for Remdesivir (COVID-19 treatment) lacks inventive step under the holistic approach

• Gilead brought revocation action
• AMMS defended patent and filed auxiliary requests
• Gilead attacked patent for insufficient disclosure and lack of inventive step

• Holistic approach to inventive step assessment (replacing problem-solution approach)
• Article 56 EPC
• Principles from Amgen-Edwards v. Mario decisions

• Holistic approach evaluates invention within context of specification and drawings
• Person skilled in art would have had high expectation of success (not mere hope) in identifying Remdesivir as treatment
• Prior art documents provided explicit problem-related guidance
• Distinction: « reasonable expectation of success » based on scientific data versus « mere hope » based on assumptions
• Patent lacks inventive step

Demonstrates application of new holistic approach in biotechnology; clarifies distinction between reasonable expectation and mere hope of success in biotech inventions

Lisbon Local Division

May 6, 2026

28 : 10 to 32 : 57

Whether offering products on domain names and sub-domain names constitutes acts of infringement

• Ericsson sued for infringement of endotor layout patent
• AsusTek holds main domain name and e-shop subdomain
• Main domain displayed products without prices or direct purchase option
• E-shop operated by AsusTek subsidiaries

Definition of « offer » in patent infringement context and responsibility for domain and subdomain content

• Patent was infringed by product offerings
• Offer understood in economic sense, not as legally binding contractual offer
• Presentation of products allowing viewers to access characteristics is sufficient offer (prices and direct purchase not required)
• Domain holder responsible for content on both main domain and subdomains

Clarifies definition of infringement acts related to online offerings and establishes that mere accessibility of products constitutes sufficient offer

Homburg Local Division

May 7, 2026

32 : 58 to the end

Validity of patent opt-out and withdrawal of opt-out following entitlement proceedings transferring patent ownership

• Patent originally owned by Polytech
• Polytech opted out in March 2023
• SILIMED won entitlement proceedings (final judgment January 5, 2026) transferring ownership
• SILIMED withdrew opt-out in February 2026
• Third party filed revocation action in Germany in January 2026 (served in March)

• Article 83.4 of UPCA
• Rule 19.1a on opt-out withdrawal restrictions
• German law on retroactive effect of entitlement proceedings

• Original opt-out valid (Polytech was formal and material owner at time of opt-out; entitlement judgment has no retroactive effect)
• Withdrawal of opt-out invalid (pending German revocation action by third party prevented withdrawal)
• Action « brought » when received by court, not when served on defendant
• UPC registrar’s acceptance of withdrawal irrelevant if national action already pending
• Legal certainty principle requires clarity on patent jurisdiction status from register

Establishes that opt-out validity depends on ownership status at time of opt-out, not retroactively and clarifies timing of when national actions prevent opt-out withdrawal