First decision of UPC Court of Appeal reported…

…but not on a particularly far-reaching issue.

In fact, the Luxembourg based court has been looking at service of documents.

It has held in Amgen v Sanofi that an infringement action may be validly served on the defendant, even if the annexes referred to in it are not served at the same time as the statement of claim. 

In the absence of special circumstances, however, if annexes are not available to the defendant for a period, the time limits for the defendant's Preliminary Objection and Defence can be extended accordingly. The nature and/or content of the attachments is irrelevant.

Whilst this is not a strategically significant decision, the first instance divisions are beginning to give hints on more potentially important issues. 

For instance, Judge Zigann has said, provisionally, that the UPC has competence to decide disputes and award relief in respect of disputes that began before 1 June 2023. This is clearly important for those who have been uncertain about whether to bring claims in the UPC based on long-running infringements.

Another issue, which is the much discussed question of whether overlap in parallel national actions and UPC proceedings (on non-opted out patents) can be permitted, and how it might be dealt with practically, has also surfaced at the preliminary objection stage. 

This particular question comes with the spectre of a potential referral to the CJEU on Article 29 and/or 30 Brussels Ibis Regulation. 

The judges dealing with these have, unfortunately, kicked this particular can down the road to the main hearing…