CD Munich, UPC 523/2025, Revocation Action, Issued On September 2, 2026

1. Key takeaways

Lack of entitlement under Art. 138(1)(e) and Art. 60(1) EPC requires showing that the proprietor has no rights to the patent.

The requirement in Art. 138(1)(e) EPC that a European patent may be revoked if the proprietor is not entitled under Art. 60(1) EPC should be interpreted as meaning that the proprietor does not have any rights to the patent. The burden of presentation and proof in this regard lies with claimant. It is therefore not sufficient for this ground of revocation to be successful that claimant demonstrates that it has rights to parts of the subject-matter disclosed in a patent, e.g. as a co-inventor or the co-inventor’s successor in title.

In a stand-alone revocation action, the Court has discretion to assess the validity of dependend claims, even if the independent claim is deemed valid.

At least in a stand-alone revocation action, where no infringement claim has been
brought and it is therefore not yet clear which claims a patent holder may decide to rely on
for what purpose, a claimant may have a legitimate interest in having the validity
of dependent claims assessed, even if the independent claim is deemed valid. Although the
Court is not generally required to take a decision regarding dependent claims in such a
situation, it should at least have the discretion to do so if considered appropriate based on
the circumstances of the case.

Wayback Machine screenshots can prove public availability of online prior art under Art. 54 EPC.

Digital archives are generally accepted as sufficient evidence to establish the public availability of online text, though the availability of associated images may remain an open question.

2. Division

Central Division Munich

3. UPC number

UPC 523/2025

4. Type of proceedings

Revocation action

5. Parties

Claimant: Wittenstein SE

Defendant: Vestas Wind Systems A/S

6. Patent(s)

EP 4 226 039

7. Body of legislation / Rules

Art. 138(1)(e) EPC

Rule 8.5(c) RoP
Rule 8.6 RoP
Rule 9.2 RoP
Rule 17.3 RoP
Rule 42 RoP
Rule 43.3 RoP
Rule 118.5 RoP

Art. 65(3) UPCA
Art. 69(2) UPCA

Art. 24(4) Brussels I Recast Regulation
Art. 71b Brussels I Recast Regulation