Germany: Trials & Appeals & Compensation

Filing a declaration of non-infringement before patent grant raises a question of admissibility, not of UPC competence, under Art. 32(1)(b) UPCA

Appeals concerning revocation counterclaims incur first-instance fees plus 10% under R. 228 and R. 370.5(a) RoP, subject to a pre-increase cap.

Re-establishment of rights (R. 320.1 RoP) requires showing that appeal deadlines were missed despite all due care due to reasons beyond control.

When exercising its discretion under R. 222.2 RoP, the CoA weighs the justification for the late submission, its relevance to the appeal, and the position of the opposing party. A party must explain why the evidence could not have been submitted in the first instance. The mere fact that assembling the evidence took time is insufficient where the party had ample opportunity to do so beforehand.

The Court dismissed Defendants’ preliminary objection, holding that in particular Art. 3 and 32(1) UPCA) do not provide for any temporal limitation of the exclusive competence of the Court concerning the acts of alleged infringements, whether acts have taken place before or after the entry into force of the UPCA. This is already confirmed by the CoA (UPC_CoA_156/2025 order of 2 June 2025, XSYS/ESKO).

The Court of Appeal of the Unified Patent Court addresses applications to withdraw in appeal proceedings involving Bekaert Combustion Technology B.V., NV Bekaert SA, and Polidoro S.p.a. concerning European Patent EP 2 037 175. The proceedings examine procedural rules governing withdrawal applications under the Rules of Procedure, specifically Rules 265.1, 265.2(c), and 370.9(b).

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.

[5] Art. 34 UPCA states that “Decisions of the Court shall cover, in the case of a European patent, the territory of those Contracting Member States for which the European patent has effect”. It is not meant to confine the UPC’s jurisdiction to its own territory. Art. 34 UPCA clarifies that as a rule – unless a more limited scope is requested (cf Art. 43, 76 UPCA) – decisions of the UPC shall cover the territory of all Contracting Member States where a European patent has effect.

Three years ago, on 1 June 2023, the UPCA entered into force, marking the launch of what is arguably the most ambitious project in European judicial cooperation in recent decades: the Unified Patent Court.