MUNICH LOCAL DIVISION Trends and Developments Contributed by: Julia Traumann and Ulrich Blumenröder, Grünecker Patent- und Rechtsanwälte PartG mbB
respective national law, and a claimant may base its claims on provisions of national law being favourable to its position compared to the pro - visions of the UPCA and the Rules of Procedure (RoP). In both cases, the party that advances the argument based on national law has to elaborate on such rules of national law and set out, with a sufficient degree of substantiation, why that rule of national law supports its argument. In other words, it is not for the UPC to determine and analyse the legal arguments based on various national laws ex officio. It remains to be seen which approach the Local Division Munich and other local and regional divisions, and of course the court of appeal, will take in the future. Preliminary Injunction (PI) Proceedings The Local Division Munich appears to be a front runner when it comes to PIs. So far, the Local Division Munich, as well as other divisions of the UPC, have shown that they are prepared to deal with complex legal issues in PI proceed - ings, despite the tight timeframe. They provide a detailed examination of the validity of the pat - ent in suit, whereby the Local Division Munich asks defendants to present only their three best invalidity arguments in order not to overload the summary proceedings (eg, Syngenta v Sumi Agro, UPC_CFI_201/2024, order of 27 August 2024). In particular, it is not necessary for the patent in suit to have survived opposition or validity proceedings to form the basis of a PI (Mammut v Ortovox, UPC_CoA_182/2024, order of 25 September 2024). The UPC reaffirmed on several occasions its “more likely than not” approach, initially devel - oped by the Local Division Munich in 10x Genomics v NanoString (UPC_CFI_2/2023, decision and orders of 19 September 2023) and
applied to all requirements relevant for assess - ing PI applications, in particular that the patent in suit is valid and infringed. The UPC’s Court of Appeal denied that there is a strict time limit for undue delay (which would be detrimental to urgency), but affirmed that this question depends on the circumstances of each case. The question is always whether the applicant’s conduct as a whole justifies the conclusion that the enforcement of its rights is urgent (or not). In the decided cases, PI requests submitted within one to two months after hav- ing all the knowledge and evidence at hand that enable the applicant to file a PI request with a reasonable prospect of success were not con - sidered late, unlike PI requests submitted after six months. Irreparable harm is not required to justify a PI, but it is sufficient that the interests of the appli - cant (who bears the burden of proof) outweigh those of the defendant. A loss of market share or a delay in filing the main proceedings may be relevant criteria. The Inventive Step Standard: European Patent Office (EPO) Problem-Solution Approach (PSA) Adopted by the Local Division Munich The assessment of inventive step is a corner - stone of patentability within the European pat - ent system. Consequently, setting the criteria by which the UPC applies in evaluating inventive step is of significant importance. On the one hand, one may assume that the UPC would adopt the same criteria as the EPO, which origi - nally granted the European patents. On the other hand, the UPC has the autonomy to develop its own criteria and establish an independent body of case law.
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