MUNICH CENTRAL DIVISION Law and Practice Contributed by: Julia Traumann and Ulrich Blumenröder, Grünecker
3. Substantive Law 3.1 Topics Covered
in several scenarios, mostly in an indirect rather than a direct form. Many such interactions will occur against the legal background of Article 33 UPCA, in particular Article 33 (3) UPCA. Interaction between the Central Division and local or regional divisions under Article 33 (3) UPCA is not merely theoretical but appears to have become a practical procedural fea - ture of UPC litigation. Recent decisions by local divisions, including in Amgen v Sanofi/ Regeneron (LD Munich, UPC_CFI_14/2023, ORD_392/2024, order of 2 February 2024) and Labrador Diagnostics v bioMérieux (LD Düssel - dorf, UPC_CFI_314/2024, UCP_CFI_572/2924, ORD_19201/2025, procedural order of 23 April 2025), demonstrate that referrals of counter - claims for revocation to the Central Division – in decided cases where a related isolated revoca - tion action is already pending – are considered an effective means of avoiding inconsistent rul - ings and unnecessary duplication of work on validity. These cases confirm that, in cases of unanimous (or equally, unopposed) referral requests, and in the absence of compelling counterarguments, local divisions are inclined to refer the case and choose to proceed with the infringement action while maintaining procedural flexibility, including the option to suspend proceedings if needed. This evolving practice reflects a pragmatic appli - cation of Article 33 (3) UPCA, enabling prompt decisions and balancing judicial efficiency with party autonomy in procedural matters. Another kind of interaction (admission of docu - ments) will be discussed later (see 4.2 Key Procedural Plans ) with regard to the case TCL Europe v Corning.
Over the past 24 months, the Central Divi - sion Munich has addressed a (not particularly broad) range of substantive legal topics, mainly addressing the classic grounds for revocation such as lack of novelty and lack of inventive step. Assessment of Lack of Novelty In its decision delivered on 17 October 2024 in NanoString Technologies Europe v President and Fellows of Harvard College (UPC_CFI_252/2023, ACT_551180/2023), the CD Munich found that for the purposes of Article 54 of the European Patent Convention (EPC), an invention shall be considered to be new if it does not form part of the state of the art. The state of the art, in accordance with Article 54 (2) EPC, shall be held to comprise everything made available to the public by means of a written or oral descrip - tion, by use or in any other way, before the date of filing of the European patent application (or when applicable the priority date). It continued that the assessment of novelty within the mean- ing of Article 54 (1) EPC requires the determina - tion of the whole content of the prior publication. Whether the subject matter of the claim, with all its features, is directly and unambiguously dis - closed in the prior art citation is decisive (refer - ring to Court of Appeal, order of 25 September 2024, UPC_CoA_182/2024, App 21143/2024, Mammut v Ortovox). Assessment of Inventive Step The assessment of inventive step is a fundamen - tal pillar of patentability in the European patent system. Accordingly, clarity on how the UPC evaluates inventive step is of considerable rel - evance. While it may be expected that the UPC will align with the established approach of the
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