UPC Weekly - About time

UPC Weekly brings you timely, thoughtful and joined-up insight into the evolving landscape of patent litigation at the Unified Patent Court.

2026 Week 40

Time pressure is a constant factor in UPC litigation. The Rules of Procedure hard code an expectation for the first instance division to get to the oral hearing on the merits within one year from the start of the action. The courts are pretty good at this on the whole. But nearly always one party prefers a slower speed and so it’s useful to see how the case law is developing to manage the progress of the action in the face of competing factors.

Stays

The UPC has general discretionary power to stay the case in front of it. But one factor in particular in Article 33(10) UPCA and R. 291(a) RoP is that the court may stay an action where there are parallel EPO opposition proceedings and "where a decision in such proceedings may be expected to be given rapidly”. We reviewed the state of play on this point in UPC Weekly 2025 w22.

Our conclusion then was that the UPC is reluctant to grant stays of proceedings pending the outcome of an EPO opposition, instead prioritising procedural efficiency and balancing the interests of the parties. But in some cases it is possible, this depending heavily on individual courts’ understanding of the “expected rapidly” criterion for the EPO decision, and in particular if the UPC proceedings are at an early stage in comparison.

Since then, if anything there had been a hardening in the case law, with first instance divisions typically being inclined not to stay the UPC proceedings in view of an EPO opposition. In February 2026, the UPC Court of Appeal (CoA) in bioMérieux v. Labrador refused a request for a stay, explaining that it should be fine to have the EPO opposition proceedings and the UPC appeal continuing in parallel. Delaying the UPC appeal proceedings would unjustifiably delay those appeal proceedings and would offer no decisive procedural advantage.

So it’s refreshing to see Avago v. Hyundai Motor (UPC LD Munich, 16 September 2026) in which a stay was granted. The infringement action was filed in January 2026, served in March 2026 and the oral hearing was set for April 2027. But in July 2026, the EPO opposition division revoked the patent. An appeal has been filed at the EPO, with the appeal oral proceedings scheduled for June 2027.

What weighed in favour of the stay? Clearly the fact that the opposition division had revoked the patent made it seem plausible that the EPO Board of Appeal would agree. Aso the fact that the UPC proceedings were at an early stage was relevant. The court noted that the patentee had launched the UPC infringement proceedings in the knowledge that the EPO opposition division might revoke the patent and so a request for a stay of the UPC proceedings was foreseeable. So the UPC proceedings are stayed until there is a final decision in the EPO opposition.

Un-stays

What happens when a stay of UPC proceedings is lifted? It’s a simple question but at least the English wording of Rule 296.3 RoP is arguably ambiguous:

R. 296.3. While proceedings are stayed, time shall cease to run for the purposes of procedural periods. Time shall begin to run afresh for the purposes of procedural periods from the date on which the stay of proceedings comes to an end.

This was debated in In(k)control v. Esko-Graphics (UPC LD Brussels, 3 September 2026). The parties had jointly sought a stay to give some space for settlement negotiations, but these proved fruitless. So the UPC proceedings were resumed. The defendant argued that the word “afresh” in R. 296.3 should be interpreted so that a time limit that was running at the time of the stay should start again from its beginning.

The court noted that there was different guidance on this point from earlier cases – some divisions accepting that the time limits should be re-set and others deciding that the time already elapsed from before the stay should be taken into account. Carefully pulling together various parts of the Rules, the court decided that the latter interpretation was correct. The effect is that the defendants had only until 2 October 2026 to file their defence, rather than until 30 November 2026. Clearly, when a stay is granted close to the end of a time limit, this means that the pressure will be on to meet the time limit as soon as the stay is lifted.

Case closed

BTL v. Lexter (UPC LD The Hague, 13 August 2026) gives some insight into what happens after a case is closed, but not quite tidied away. The infringement action was withdrawn in view of a settlement between the parties, this confirmed by an order from the court dated 16 January 2026. That order included a confirmation that the parties did not request a costs decision.

The claimant filed a request for reimbursement of 60% of the court fees. Depending on the value assigned to the case, the court fee for an infringement action can be significant. So a partial reimbursement is worth asking for. But this request was only filed on 10 March 2026.

The court decided that the request for reimbursement was inadmissible, because it was filed after the case was closed. But even if the request had been admissible, the court considered that it ran contrary to the parties’ agreement that no costs decision was wanted and anyway it was unreasonably late after the order closing the case.

Earliest common denominator?

And finally. With the UPC having such a wide jurisdiction, we see many cases with a large number of defendants. A claimant will typically include them to cover all the bases for the purposes of infringing acts, potential evidence production and assertions of joint infringement.

The UPC Registry itself carries out service on the defendants. This can lead to a wide dispersion in the dates of service of the different defendants, particularly service tends to be later for defendants outside of Europe. In principle this leads to the different defendants having different time limits for filing their statement of defence. We have seen a practice build up where the parties may agree on a notional unified date of service for all defendants, and ask the court to bless a single time limit for the defence based on this date.

Step up Nixu v. Amazon (UPC LD Milan, 04 September 2026). Nixu sued four Amazon defendants, with defendant 1 (US) served 11 August 2026 but defendants 2 (LU), 3 (DE) and 4 (IT) served earlier, between 29 July and 3 August 2026. Amazon asked the court to set a common deadline of 11 November 2026 for filing the defence, calculated from the latest date of service, or in the alternative to a compromise single date. The Rules of Procedure allow for 3 months from service for filing a statement of defence in an infringement action.

The court did indeed set a unified deadline, but set it to the earliest possible date of 29 October 2026. The rationale was that the four defendants are clearly closely linked – they are all part of the same corporate group – and so it is reasonable to assume that from the earliest date of service, all of the defendants knew about the proceedings. This is therefore one of the rare instances of the court using its discretionary power to shorten a time limit set by the Rules of Procedure.