UPC update: January 2026

Welcome to the first of our regular UPC updates for 2026. In this edition, we cover significant developments across both procedural and substantive aspects of UPC practice – from substantial fee increases through to the Court of Appeal's landmark decisions settling the UPC's approach to the assessment of inventive step. 

UPC fee increases  

From 1 January 2026, new court fees apply in the UPC to all actions and applications filed as from that date. The previous fees were set back in 2016 during the planning stages of the UPC, and so the decision has been taken to update them to be in line with inflation. Some of the fee increases are particularly significant including: 

• 10% increase of the value-based fees before the Court of Appeal.  
• Large increases in certain fixed fees e.g. a 32% increase in the fixed fee for filing an infringement action (from €11,000 to €14,600) and a 32.5% increase in the fixed fee for filing a revocation action (from €20,000 to €26,500). Meanwhile, the fixed fees for e.g. an application to preserve evidence or for an order for inspection have each risen from €350 to €5,000. 
• New value-based fees for provisional measures and other applications (in recognition of the fact that such applications are intensive of judicial resources).  

In addition, there are some revisions to the scheme for reimbursing court fees, and to mitigate the impact of the increases on SMEs (by increasing the reduction of court fees for SMEs to 50%). The new table of fees can be found here.  

Inventive step: Court of Appeal settles the approach toward the assessment of inventive step – Meril v Edwards (UPC_CoA_464/2024, UPC_CoA_457/2024, UPC_CoA_458/2024, UPC_CoA_530/2024, UPC_CoA_532/2024, UPC_CoA_533/2024, UPC_CoA_21/2025, UPC_CoA_27/2025) and Amgen v Sanofi (UPC_CoA_528/2024) 

In what appears to have been a synchronised move, the two panels of the Court of Appeal both issued decisions on the same day setting out in comprehensive terms, the UPC's approach to the assessment of inventive step. 

Prior to these decisions, the various divisions of the UPC had adopted differing approaches toward the assessment of inventive step. The long established 'problem-solution' approach of the European Patent Office (EPO) had been expressly adopted by some divisions, such as the Munich Local Division in Meril v Edwards. Others had adopted what have been termed more 'holistic' approaches, such as the Paris Central Division in NJOY v VMR, an approach that seems to have been born out of the inventive step assessment applied by the Court of Appeal in 10x Genomics v Nanostring. Whilst the Court of Appeal had previously reached various substantive decisions involving an assessment of inventive step, including in 10x Genomics v Nanostring, it had refrained until these two decisions from definitively (or at least expressly) setting out what it considered to be the 'correct' approach to the inventive step assessment.  

Amongst providing guidance on a number of other important aspects of substantive patent law, the two panels simultaneously set out the approach that should be applied in the assessment of inventive step. That approach, as is noted in headnote 7 of the Meril v Edwards decision, is the same approach that the Court of Appeal had earlier adopted (albeit without being expressly stated) in its 10x Genomics v Nanostring. 

The approach, as set out in summary in headnotes 8-13 of Meril v Edwards, shares very many similarities with the notorious 'problem-solution' approach and the Court of Appeal itself appears to imply (see, e.g. paragraphs 124-126 of Sanofi v Amgen) that both approaches should in fact end up at the same conclusion (which perhaps gives rise to the question of why it felt the need to establish a different test in the first place). However, there are some notable differences, the significance of which are yet to be fully established. 

Perhaps most significantly under the Court of Appeal's approach, whilst a 'problem' and its 'solution' still need to be identified, as in the 'problem-solution' approach, the court expressly notes that they are not to be formulated "by looking at the individual features of the claim" as is typically done under the 'problem solution' approach. Rather, they are to be identified "by establishing what the invention adds to the state of the art ... by comparing the claim as a whole in the context of the specification and the drawings" – i.e. by looking at what is taught in the patent to be the alleged contribution of the invention (similar to the approach taken by the UK courts in its inventive step assessment).   

The two decisions also expressly note that 'multiple starting points' may be considered in the assessment of inventive step. At face value, this may seem to sit in contrast to the EPO's 'problem-solution' approach, which requires an identification of the 'closest' prior art. In practice however, and as has been established in the jurisprudence and guidance of the EPO (e.g. the EPO's Guidelines for Examination: G-VII, 5.1, second paragraph), the EPO does permit the consideration of multiple starting points when assessing inventive step under the 'problem-solution' approach. 

Preliminary injunctions: Paris Local Division refuses provisional measures in the context of generic medicines due to unreasonable delay – Merz v Viatris Santé – UPC_CFI_697/2025 

In the first UPC case relating to a Supplementary Protection Certificate (SPC), the Paris Local Division has refused Merz's application for provisional measures seeking to prevent Viatris from marketing its generic product in France, which Merz alleged infringed its French SPC (which expires in July 2026) for fampridine. Fampridine (brand name 'FAMPYRA') is a drug to improve mobility in multiple sclerosis patients. Viatris opposed the application, arguing the SPC was invalid and the application was made too late. The court refused Merz's application, following the Court of Appeal's decision in Boehringer v Zentiva, solely on the basis that Merz had unreasonably delayed in seeking provisional measures (Rule 211.4 of the Rules of Procedure (RoP)).  

Viatris had launched its generic product in June 2025, having obtained a marketing authorisation in France in November 2021, with pricing and reimbursement rates granted in November 2024. Merz acquired the rights to fampridine from Acorda and Biogen in July 2024, and assumed full management and marketing responsibilities in January 2025. 

Merz argued that there were two starting points for assessing the reasonable time period for applying for provisional measures: (i) when a claimant becomes aware of imminent infringement; and (ii) the act of infringement itself. The court disagreed, relying on Rule 211.2 RoP which states that, in taking its decision, the court will consider "reasonable evidence… that [an applicant's] right is being infringed, or that such infringement is imminent" (emphasis added). The court held there were not two separate and consecutive situations to trigger the urgency condition, but instead two alternative situations that allow for an application for provisional measures to be made. The court noted the "criterion of imminent risk of infringement is particularly relevant in the context of a generic product being placed on the market". 

The court determined the relevant starting point for assessing any delay by Merz was when Viatris obtained pricing and reimbursement approval in November 2024, which finalised the administrative procedure required for marketing in France. Merz regained direct exploitation rights of FAMPYRA in January 2025. The court held that this was therefore the date on which Merz became aware, or should have become aware, of the (imminent) infringement that would enable it to apply for provisional measures. However, Merz did not send a warning letter to Viatris until June 2025 and did not file its application for provisional measures until 31 July 2025, a delay of six months. The court held this was an unreasonable delay.  

Preliminary injunctions: Hamburg Local Division grants preliminary injunction, finding CE-mark approval for medical devices is starting point in assessing imminent infringement – Occlutech v Lepu – UPC_CFI_553-2025 

The Hamburg Local Division has granted Occlutech's application for a preliminary injunction against Lepu's occlusion devices on the basis of alleged infringement of Occlutech's patent for a braided occlusion device (used for the purposes of stemming blood flow).  

The court noted medical device manufacturers must obtain CE-marking, in contrast to generic pharmaceuticals which require certain national procedures to be completed after a marketing authorisation is granted before they can be put on the market. The court held that obtaining CE-mark approval for a medical device indicates expected market entry in any EU member state in the foreseeable future. Lepu had therefore "set the stage" for infringement by obtaining and publicly announcing CE-mark approval, providing ordering information, and announcing it would showcase its products at a Frankfurt trade fair, which constituted sufficient proof of imminent infringement in Germany. 

The court further held that, as CE-mark approval is a prerequisite for legally marketing a medical device in the EU, Occlutech's knowledge of Lepu's devices prior to this date was not relevant for assessing urgency. As soon as an applicant "has all the knowledge and documents that reliably enable a promising legal action, it must file the application for the ordering of provisional measures within one month" (following the Hamburg Local Division's decision in Ballinno v UEFA, discussed in our July 2025 update). The court decided that Occlutech had acted with sufficient urgency from the point it gained knowledge of the CE-mark approval and did not unreasonably delay in bringing its application. 

In weighing the parties' interests, the court found Occlutech's interests outweighed those of Lepu. The parties were direct competitors, there was a proven increase in Lepu's marketing activities, the introduction of Lepu's devices would likely directly affect Occlutech's sales opportunities, and Lepu's devices were likely offered at a significantly lower price, leading to price erosion.  

Lepu has appealed the decision, pending which the Court of Appeal has refused to grant suspensive effect.  

Paris Central Division clarifies the concept of a "strawman company" within the UPC framework - Seoul Viosys Co., Ltd v Emporia UK and Ireland - ORD_32540/2025 

An important order from the Paris Local Division has confirmed that the "strawman" or "straw company" theory has a legal basis in EU law and is relevant when assessing whether parties are the "same" under Article 33(4) UPCA. However, whilst the strawman theory is recognised within the UPC system, parties face a substantial evidential burden when arguing that an opponent is acting as such. In particular, the court emphasised that mere coordination between related commercial entities is insufficient to establish strawman status. 

Emporia UK and Ireland Ltd had filed a revocation action against Seoul Viosys Co., Ltd's EP 3 926 698 before the Paris Central Division. Seoul lodged a Preliminary Objection requesting the court dismiss the revocation action as inadmissible under Article 33 (4), Sentence 2 UPCA , which grants jurisdiction to the local division previously seized to hear a case between the same parties concerning the same patent. 

Seoul argued that the Paris Central Division lacked competence as the Patent was the subject of a parallel infringement action and a counterclaim for revocation between the same parties, pending before the Court of Appeal. It argued that Emporia was acting as a "straw company" for the defendants in the parallel proceedings (in particular distributor ex-pert klein GmbH, "Ex-pert Klein"), and must therefore be considered as the same party.  

Seoul relied on the following arguments: (1) Emporia and Ex-pert Klein shared the same legal representatives; (2) the revocation action was an express and concerted strategy to defend against the infringement action; (3) Ex-pert Klein's invalidity counterclaim and Emporia UK's revocation claim were identical (even down to the numbering of the exhibits); and (4) in the appeal proceedings, Ex-pert Klein requested a stay pending the decision on the invalidity action. Seoul argued that this was an impermissible circumvention of the UPC’s jurisdictional framework, allowing a "straw" party to have a "second chance" at invalidating a patent. 

The court gave the following definition of a "straw company": a company that exists only formally, without any real or significant business activity. It is characterised by the fact that it lacks effective operational activity, does not conduct real commercial, productive, or service-related business, and is without a significant organisational structure. It is used solely as a front company or nominee for the true owner. 

While EU law does not specifically provide for an institution corresponding to contractual simulation or explicitly regulate "straw companies", the court noted it does include a general principle prohibiting abuse of rights. When such an entity is used to circumvent EU rules or to frustrate the interests those rules are intended to protect, the actions of the "straw company" can be attributed to the party behind it. 

However, the court rejected the preliminary objection. The fact that two companies resort to substantially overlapping defence strategies did not mean that they were not conducting autonomous business activities or pursuing their own interests. From a business standpoint, it was entirely reasonable for a distributor facing an action for patent infringement to inform its supplier and for them to coordinate their defensive strategies, including in judicial proceedings. 

The party asserting strawman status bears the burden of proof and must demonstrate that the company lacks genuine operational activity and exists solely as a front for another entity. 

Lastly, the UPC framework does not exclude the possibility that a patent may be attacked by different entities, even if they are linked by organisational ties or commercial relationships, and by the means of different claims, even if structured in the same grounds of invalidity. 

Timing of security for costs application - Oerlikon Textile GmbH & Co KG v Bhagat Textile Engineers, Order of the UPC Court of Appeal – UPC_CoA_8/2025 

The Court of Appeal has given guidance on the timing for an application for security for costs. Applying Rule 158.1 RoP, which states that the court may order security for costs "at any time during proceedings", the Court of Appeal confirmed that an application for security may be filed even after the summons for oral hearing has been issued, if substantiated by compelling reasons. It must, however, be filed before an award on costs has been decided by the court, on the basis that the main purpose of security for costs in the UPC system is to protect a party from a future risk of not being able to recover its legal costs. 

Separately, the Court of Appeal considered the interplay between the order for costs in the Court of First Instance (CFI), and an application for security in the Court of Appeal. Oerlikon had been awarded its costs of the CFI proceedings in the amount of €77,064.65. Bhagat had not paid the ordered sum, and Oerlikon sought an order for security for that sum from the Court of Appeal. However, the Court of Appeal concluded that this was a matter of enforcement of the CFI's costs decision, and did not justify a request for security of costs in proceedings before the Court of Appeal. In this case, it would also have amounted to an order of security for costs against a defendant in an infringement action, which is not permitted.  

Court considers doctrine of equivalence test and file wrapper estoppel - Raccords et Plastiques Nicoll v First Plast France & ors – UPC_CFI_612/2024 

The claimant (RPN) had brought infringement proceedings against the defendants before the Paris Local Division relating to its European Patent 3272938 relating to a device and method for installing a gutter, comprising a gutter channel and cover. The court rejected the claim for literal infringement. In doing so, the court considered statements made by RPN during the grant proceedings. The Court of Appeal has previously stated (in Alexion Pharmaceuticals, Inc v Samsung Bioepis NL B.V. UPC_CoA_402/2024) that such statements are only an indication of the view of the person skilled in the art at the filing date. Here, however, RPN had made certain statements during the grant procedure and then gone on to amend its application to avoid an objection of lack of novelty, as a result of which it was squeezed from arguing literal infringement.  

RPN also argued that the defendant had infringed under the doctrine of equivalence. The court stated that, in the absence of agreement by the parties to apply a particular national law on this point, it was necessary to apply case law pursuing a harmonised approach, using criteria derived from a compromise between the different doctrines used by member states. This meant that it was necessary that at least the function be reproduced – if it were not, there would be no reproduction by equivalence. The court posed the following question: "do the modified (or substitute) means essentially fulfil the same function to achieve essentially the same effect?". The Court went on to reject the claim of infringement by equivalence.   

Preliminary injunction granted to Hewlett-Packard - Hewlett-Packard Development Company L.P. v Andreas Rentmeister and Schenzen Moan Technology – UPC_CFI_515/2025 

Hewlett-Packard sought a preliminary injunction in relation to the defendants' alleged infringement of its European Patent 3835965 relating to logic circuitry, through sales of printer cartridges. Settlement was reached with the first defendant trader and, in light of the settlement, the parties requested a decision by default. However, the court concluded that a regular order should be issued.  

The court decided that it was more likely than not that the patent had been infringed by the offer and distribution of the relevant cartridges by the first defendant, and the validity of the patent was reasonably certain. In granting the order, the court noted that the defendant's products were sold at a significantly lower price and that this increased the likelihood of a loss of market share for the applicant. There could also be reputational harm if the defendant's cartridges were of lower quality and caused compatibility problems with HP printers.  

Service on the second defendant, a company based in China, had not been completed. In a separate order, the court ruled that, where an application is to be served under the Hague Convention and the authority responsible for service had not effected service for three and a half months (and there had been unsuccessful attempts to contact the Chinese authorities and the second defendant) the court could deem the steps taken so far to be sufficient for service.  

Permanent injunction granted for non-UPC and non-EU states – HL Display AB v Black Sheep Retail Products B.V. – UPC_CFI_386/2024 

We have written in previous editions about the way in which the UPC has embraced its long-arm jurisdiction by granting injunctions in relation to both non-UPC and non-EU states. Another example arose in this case where the Hague Local Division granted such an order (covering Liechtenstein, Ireland, Norway, Poland, Switzerland and the UK) in an infringement action relating to shelf dividers. The defendant had filed a counterclaim for revocation but this was only relevant to the contracting member states; for the non-UPC states, it was to be considered a defence. There were no national revocation proceedings. The court's findings were as follows: 

• For the UPC contracting member states, the patent was valid, and so the revocation counterclaim was rejected. 
• For non-UPC / non-EU / non-Lugano states (i.e. the UK and Liechtenstein), the patent was found valid on an inter partes basis.  
• For non-UPC, EU and Lugano member states, the court concluded that there was "no serious, non-negligible chance the patent will be revoked by the competent national court". 

As a result of these findings, the court could assess infringement in relation to all designations and went on to grant an injunction covering all of them.  

Court of Appeal confirms strict application of rules on preliminary objections and refuses requests for a stay – Sun Patent v Vivo (UPC_CFI_361/2025,  UPC_CoA_755/2025 and UPC_CoA_757/2025, UPC-COA-0000904/2025 and UPC-COA-0000905/2025) 

In this case, Vivo had filed two preliminary objections under Rules 19.1(a) and 19.1(b) RoP arguing that: 

1. the UPC lacked jurisdiction as Sun Patent's claim included a request for a declaration that the terms of its licence offer were FRAND or, in the alternative, for the determination of FRAND terms, which it said fell outside of the scope of the UPC Agreement; and  
2. the Paris Local Division lacked jurisdiction as none of the defendants were domiciled in France.  

The Paris Local Division had rejected both preliminary objections noting that: 

1. Sun Patent's claim was primarily an infringement action in which a FRAND defence had been anticipated, and such defences fell within the UPC's jurisdiction; and  
2. Sun Patent's purchase of an allegedly infringing product from Vivo's website dedicated to the French market and the delivery of that product in France were sufficient to establish the Paris Local Division's competence. 

Vivo filed a request to stay the underlying proceedings under Rule 21.2 RoP pending appeal proceedings, but this was rejected by the Court of Appeal as there was no active appeal on any decision or order on a preliminary objection. Whilst a stay may be granted in exceptional circumstances under Rule 21.2 RoP, an appeal on a preliminary objection must first be lodged and cannot be merely anticipated or speculated. The Court of Appeal confirmed that Rule 21 RoP must be strictly applied and noted that, as a general rule, it will not order stays or extend deadlines unless exceptional circumstances exist. Such matters should be addressed by the Court of First Instance, which is better informed and retains discretion in case management. 

Vivo subsequently lodged an appeal in relation to the preliminary objection orders under Rule 21 RoP and, with that appeal, filed a request that the deadlines for filing its Statement of Defence and Counterclaim for Revocation be stayed under Rule 21.2 RoP until a final decision on the preliminary objection was issued. The Court of Appeal referred to Rule 19.6 RoP, which provides that the period for lodging a Statement of Defence should not be affected by the lodging of a preliminary objection unless the judge-rapporteur decides otherwise. Whilst the Court of Appeal acknowledged that a stay may be granted in exceptional circumstances, it rejected Vivo's arguments and stated that the fact that the preliminary objection concerned a question of jurisdiction which has "never been decided by the court and which has triggered a high amount of controversial discussion among scholars does not constitute exceptional circumstances which can justify a stay". The request for a stay was, therefore, rejected.