UK Trends and Developments Contributed by: Nicola Dagg, Jin Ooi, Ray Cheng and Nevyn Fournel, Kirkland & Ellis
of issues in a wide range of sectors, making it an important forum for handling patent disputes in Europe. According to the UPC’s most recent caseload report, the German UPC local divi- sions have proven to be the forum of choice for patentees, with 71% of the caseload as of 30 November 2024. In 2024, many parties were keen to see how the UPC’s approach to preliminary injunctions (“PI”) would develop following the decision to grant a PI in 10x Genomics v NanoString in 2023. The UPC’s approach in 2024 has proven to be more balanced than expected. In 10x Genomics v NanoString , the UPC Court of Appeal overturned the Munich Local Division’s decision on the basis that the patent’s invalidity was “predomi- nantly probable”, thus giving due deference to validity/invalidity issues. The Court also set out a higher standard to assess whether the require- ment of infringement with “a sufficient degree of certainty” was met. The UPC has additionally emphasised that patentees seeking PIs need to act urgently, rejecting a PI application in Ericsson v Asustek for lack of urgency.
The UPC’s approach to obviousness has also developed in 2024. In Sanofi v Amgen , the Munich Central Division held that the first step of the obviousness approach consisted of deter- mining a “realistic starting point” for the skilled person, which appears to provide more flexibil- ity than the EPO’s standard problem-solution approach of identifying the closest piece of prior art. This shows that the UPC is willing to build a body of specialised jurisprudence of its own making instead of unthinkingly relying on exist- ing national law or EPO decisions. Future deci- sions will show if other divisions will be willing to build a caselaw consistent with this approach. Finally, the UPC recently dealt with its first two FRAND cases in Panasonic v OPPO and Hua - wei v Netgear . The Mannheim and Munich Local Divisions, respectively, found OPPO and Net- gear to be infringing. Adopting a “German-style” approach, they refused OPPO’s and NetGear’s FRAND defence on the basis that they did not behave in a FRAND-like manner.
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