Chris de Mauny

It’s been a year of significant decisions from the Unified Patent Court (UPC), from both the first instance Local Divisions (LDs) and Central Division (CD) and the Court of Appeal (CoA).  Jurisdiction and, as more appellate decisions become available, the substantive law on patent validity and infringement, have come into focus. Decisions relating to enforcement also provide helpful indications for the future. 

This year saw the start of the Unified Patent Court (UPC) issuing substantive decisions. As of December 9, the UPC has issued over 20 decisions on the merits, primarily involving infringement actions, and numerous decisions relating to provisional measures. The Court has granted injunctions in all cases where a patent has been found to be valid and infringed (including Standard Essential Patent (SEP) cases). The Court has been effective in resolving cases within a year. Key legal principles were clarified, including claim construction and requirements for the granting of provisional measures. The UPC’s approach to added subject matter so far aligns closely with European Patent Office (EPO) practice but its approach to inventive step differs.

On July 16, the Unified Patent Court’s (UPC) Central Division (CD) in Munich revoked Amgen’s patent covering use of PCSK9-binding antibodies for treatment of cardiovascular disease. In its written decision the CD discussed the correct approach to claim interpretation and the assessment of inventive step. Amgen’s patent, the subject of this decision, is in the same family as the patents that are the subject of the U.S. Supreme Court’s decision in May 2023: here, the first instance division of the UPC revoked the patent on the basis it lacks inventive step. The decision comes out of the first case filed at the UPC and has a complex procedural history not addressed in this article.

Thirteen months after it opened for business, Europe’s Unified Patent Court (UPC) has issued its first decision on the merits. On July 3, 2024, the Düsseldorf Local Division released its decision in Franz Kaldewei v Bette UPC_CFI_7/2023, issuing cross-border injunctive relief and a provisional award of damages enjoining the defendant from continuing infringement. On June 1 2023, plaintiff Franz Kaldewei had sued Bette for direct and indirect infringement of claims 1 and 3 of EP3375337, ‘Sanitation Bath Tub Device,’ in Austria, Belgium, Denmark, France, Italy, Luxembourg and the Netherlands. Kaldewei sought disclosure of accounts books for the calculation of damages to be paid, an award of provisional damages, an injunction, a recall of the product from the market and permanent removal.

The first half of 2024 has been a significant one for IP in Europe. This article does not attempt a comprehensive review of all IP developments across Europe in 2024, not least because the detail of the Unified Patent Court’s (UPC’s) decisions and operations are outside the scope of the article. The first half of the year yielded some significant early jurisprudence in the UPC, including the first appellate decisions on preliminary injunctions, claim construction, access to documents and opt-outs. The profile of the new court’s users has also evolved with significant increases in filings made by pharma companies and by NPEs. Likewise, the proportion of requests for Unitary Patents (which may be enforced only in the UPC) rose.