Irides: Weekly global patent litigation update

This edition features updates from: Germany, Finland, Japan and the Unified Patent Court (UPC).

The Irides Weekly Update is our round-up of patent litigation news highlights from around the world.
 

Germany

Federal Court grants VoiceAge Antitrust appeal.

The German Federal Court of Justice has upheld VoiceAge’s patent infringement claim, rejecting HMD’s compulsory FRAND licence defence due to its conduct as an unwilling licensee.

The core question at the heart of the appeal was whether VoiceAge seeking an injunction was unlawful under competition law. Following Huawei v ZTE, it is not a breach of Art. 102 TFEU for a Standard Essential Patent holder to seek an injunction if the infringer’s conduct indicates they are not a willing licensee. HMD’s conduct, in particular its delay in responding to VoiceAge’s confidentiality agreement and insufficient security offered, made it an unwilling licensee in the eyes of the Court.

The Court declined to make a referral to the CJEU. It found beyond reasonable doubt that Huawei v ZTE did not require a strict sequence of steps which must be strictly followed in every case. Therefore, there was no question to refer to the CJEU, with the decision made in accordance with specific legal and factual circumstances of the individual case which are matters for the national court. 
 

Finland

Supreme Court overturns Market Court’s invalidation of BMS Apixaban patent.

Readers may recall that in May 2024 the Finnish Market Court (FMC) invalidated BMS’ Apixaban patent based on a finding of lack of novelty. The Court came to this decision after holding that the patent was not entitled to its claimed priority date and in the face of intervening art between the priority date and the date of filing of the application. The FMC conducted its assessment of priority on the basis of US law, noting that BMS had failed to meet the requirements under US law for the intragroup transfer of the priority application ahead of filing the patent application at the EPO. BMS had argued before the FMC that this assessment was no longer correct considering G1/22 and G2/22, which now required only an assessment of the conditions required for granting a patent under the European Patent Convention (EPC), without reference to national law. G1/22 and G2/22 also laid down a strong presumption that an applicant is entitled to claim priority. This presumption, can according to the Board of Appeal, only be rebutted in rare and exceptional cases. Considering the decision of the FMC, BMS appealed to the Supreme Court (SC).

The SC considered that the functionality of the European patent regulations and legal certainty strongly supported a uniform interpretation of the Finnish Patent Act in accordance with the EPC. They therefore considered it justified to follow the decisions in G1/22 and G2/22, and in doing so noted that several other European countries also considered these decisions should be applied in national validity proceedings.

The case will now return to the FMC who will assess whether Teva present sufficient evidence to rebut the strong presumption of entitlement to the priority. If so, the other grounds of invalidity presented by Teva will also be assessed (e.g. lack of inventive step and sufficiency, which were not considered by the Market Court previously).
 

Japan

District Court’s Intellectual Property Division issues Standard Essential Patent litigation guidelines.

The Tokyo District Court (TDC) has published guidelines for patent litigation relating to SEPs, summarised below:

1. Trial policy: The TDC can determine the FRAND terms for a SEP holder’s entire global portfolio, although it should recommend settlement at the first hearing and set a timetable for settlement discussions.
2. Trial plan: The guidance considers that the main issue to determine is whether the parties have been willing licensees or licensors. Parties will be required to submit evidence on Court-recommended settlement proceedings which have failed. If issues of validity or sufficiency are raised, then an appropriate timetable will be set. The Court encourages a document-based trial.
3. Settlement procedure: Once the Court-recommended settlement procedure initiates, the Court will aim to avoid hold-up and hold-out by adopting a moderate stance. The settlement proposals can be adjusted to promote the likelihood of an agreement between the parties. The Court will also be mindful of the intentions of the parties and not impose a global royalty if that is not what is intended by the parties. Any agreed settlement will be annexed to a settlement memorandum.
4. Claimant’s preparation: The Claimant should propose the global FRAND royalty rate in its claim and state the basis on which it is calculated. This can be either a comparative approach, a top-down approach or a combination of the two approaches.
5. Defendant’s preparation: The Defendant should submit a counterproposal for the global FRAND rate in its reply, stating whether the calculation method of the Claimant is acceptable and state its own basis of calculation. The Defendant also needs to submit evidence on sales volumes and amounts of its products. A failure to comply with this requirement could result in the Defendant being labelled an unwilling licensee by the Court. 
    

UPC

Court of Appeal provides guidance on confidentiality regimes in FRAND disputes.
[UPC_CoA_755/2025]

On 26 January 2026, the Court of Appeal (CoA) handed down its decision on appeals from the Paris Local Division (LD) concerning access to information designated confidential and Highly Confidential (HCI) – including Sun Patent Trust’s comparable licences. The CoA gave guidance on confidentiality regimes in FRAND cases and, notably, imposed a two-year licensing bar on the three Vivo employees permitted to access the HCI.

SPT had brought two infringement actions against Vivo before the LD, seeking (among other relief) the determination of a FRAND licence for SPT’s 4G patents. The LD allowed three named Vivo employees to access the HCI. SPT appealed, arguing that if access were granted to those employees, it should be coupled with a licensing bar preventing their involvement in any licensing negotiations with the counterparties to the disclosed agreements for a defined period.

Apple applied to intervene, supporting SPT to the extent Apple’s own confidential information was concerned. Apple argued that the LD should have imposed an External Eyes Only (EEO) regime for its information and that Vivo’s employees should face a five-year licensing bar. Vivo, for its part, maintained that the appeals – and Apple’s intervention – should be dismissed. Vivo argued that EEO regimes are incompatible with the UPC framework (including the minimum standards in the EU’s Trade Secrets Directive), and would be disproportionate.

The CoA held that the Trade Secrets Directive does not directly apply to patent proceedings, though its underlying principles are useful when interpreting UPC’s RoP. It emphasised that, as a general rule, at least one employee of each party must have access to confidential material to ensure an effective remedy and a fair trial.

However, the CoA accepted that once the employees had seen the HCI, they could not unlearn the information. To avoid creating an information asymmetry in future negotiations, the Court deemed it proportionate to impose a two-year licensing bar, preventing the three employees from participating in or advising on licensing negotiations with the counterparties to the disclosed agreements (absent those counterparties’ consent).

As for Apple’s intervention, the Court held that several of Apple’s requests went beyond the scope of SPT’s appeal and beyond the parameters set when Apple was admitted. To the extend the Apple’s requests did not support SPT’s appeal, it was dismissed as inadmissible. 
 

UPC

Mannheim LD impose €1.72 million penalty on Kodak for non-compliance.  
[UPC_CFI_365/2023]

On 20 January 2026, the Mannheim LD imposed €1.72 million in penalties on Kodak for failing to comply with a final injunction and associated disclosure of information, destruction, recall and removal orders relating to Fujifilm’s patent EP 3 511 174.

The penalties arose from continued non-compliance after 23 July 2025, following LD’s earlier enforcement order and the partial confirmation by the CoA in October 2025. Fujifilm argued that Kodak still had not provided complete and verifiable information, nor carried out the required recall and destruction steps, despite proper notices of enforcement.

LD agreed – it found significant shortcomings across several fronts:

• Missing export-related information: Kodak only disclosed deliveries and revenues for Germany, arguing that foreign sales were irrelevant. The Court rejected that and held that given the infringing manufacturing took place in Germany, all profits causally linked to that manufacturing – including profits realised abroad by other Kodak entities – fell within the scope of the information order.
• Non-verifiable quantities: Kodak provided production data in square metres but delivery data in units, without revealing how many square metres each unit contained. The Court held that this made verification impossible and therefore directed Kodak to disclose quantities square metres, broken down by delivery and market.
• Insufficient revenue data: Kodak withheld key deductions and relied on an external auditor’s memorandum, but the Court held that the auditor did not have full access to data and could not replace Kodak’s duty to disclose complete information.
• Incomplete recall: Recall letters were not sent to all customers, including insolvent companies or customers who had received demo samples or stock with expired shelf life. The Court held that expiry does not excuse recall – the plates could still be used in other markets.
• Advertising: The Court held that Kodak could not refuse to provide advertising information simply because other Kodak group entities handled marketing. The obligation to provide information was not limited to that what is readily available, but also extended to information that was held with other Kodak entities which the Kodak German entities should have reached out to – particularly because the Kodak Germany entities used those advertising materials. 

Given these shortcomings in compliance with the Court’s previous order, the Court imposed penalties of €1.72 million, consistent with the first enforcement order (as modified by the CoA).  

The Court warned that for any further non-compliance after 21 January 2026, the daily penalty would increase to €25,000 per day.
 

UPC

Paris LD rejects Guardant Health's Preliminary Injunction application against SOPHiA GENETICS' liquid biopsy test.
[UPC_CFI_808/2025] 

In a decision delivered on 23 January 2026, the Paris LD rejected Guardant Health, Inc’s (Guardant) application for provisional measures on SOPHiA GENETICS' (SOPHiA) liquid biopsy test. Bristows represented SOPHiA in these proceedings.

Guardant, a cancer diagnostics company based in the US, filed a PI application against SOPHiA in August 2025 based on alleged infringement of four of its patents by MSK-ACCESS® powered with SOPHiA DDM™, SOPHiA's liquid biopsy test. The four allegedly infringed European patents were EP 3470533 B2 (EP 533), EP 3591073 B2 (EP 073), EP 3443066 B1 (EP 066), and EP 3766986 (EP 986). In the course of the proceedings, Guardant withdrew its claim based on EP 533. The oral hearing at the LD on 12 December 2025 considered the remaining three patents.

Of particular interest are the Court's findings on added matter, urgency, and the need for a sufficient degree of certainty for infringement.

Urgency

Based on the standard outlined by the CoA in Mammut v Orvotox under r. 211.4 RoP, the Court found that SOPHiA failed to demonstrate that Guardant had sought provisional measures with unreasonable delay. The Court considered when Guardant had sufficient evidence to commence the action and set the starting point for assessing urgency as 27 May 2025, when correspondence between the parties began. It held that three months was a reasonable delay to prepare the application for provisional measures given the complex technology and multiple patents involved in the case.

Insufficiency, validity and added matter

The first of the patents was EP 073, a divisional of EP 533, and relates to methods which allow sequences of cell-free DNA (cfDNA) molecules to be identified after amplification and sequencing through tagging with non-unique barcodes.

The infringement arguments for this patent primarily focused on the wording in the claim relating to consensus sequencing. The Court found that the construction of this feature was constrained by the fact that alternative methods for analysing sequence reads were disclosed in EP 073 but not claimed. The judgment found that infringement had therefore not been met with sufficient certainty as required by r. 211.2 RoP.

SOPHiA was also successful in their validity arguments on EP 073. They argued that Claim 1 comprises a combination of features not disclosed directly and unambiguously in the application as filed, with which the Court agreed, as the original application cannot be treated as a “reservoir from which scattered fragments can be combined”. The Court also referred to the preliminary opinion given by the EPO Board of Appeal on 18 December 2025 (after the oral hearing) in an opposition against EP 073, which also indicated that that the claims of EP 073 fell foul of added subject-matter and that therefore, the patent will likely be revoked.

The second patent, EP 066, concerns a method for identifying four cancer types using ‘deep sequencing’ of cfDNA at a read depth of at least 50,000x with a 25-gene panel. The Court also found EP 066 more likely than not to be invalid on grounds of added matter. It found that the selection of 25 genes and the four cancer types were essential to the invention as claimed; however, Guardant had failed to show that the skilled person would arrive at the claimed subject matter as a clear and unambiguous consequence of what is disclosed in the original patent application. The claims and description of the application concerned five rather than four cancers, and there was no teaching regarding a panel comprising one or more loci from each and every one of the 25 genes.

The third and final patent, EP 986, concerns the use of a computer database to link longitudinal cfDNA testing data with tumour tracking and treatment efficacy. The alleged infringement relates to SOPHiA’s software platform, ‘SOPHiA DDM’. The Court found that Guardant failed to demonstrate infringement of Claim 1 or its dependent claims with a sufficient degree of certainty as required by r.211.2 RoP. It accepted SOPHiA’s argument that the manner of information processing in the SOPHiA DDM software had not been sufficiently proven, as Guardant relied primarily on information from a disputed press release which provided no meaningful technical detail about the operation of SOPHiA’s database.

Guardant’s requests for provisional measures against SOPHiA were rejected for each of EP 073, EP 066 and EP 986. Guardant was ordered to pay SOPHiA €400,000 as an interim costs award.

The full judgment for these proceedings can be read here.
 

UPC

Munich LD grants Reestablishment over ambiguous R. 151 Obligation. [UPC_CFI_1510/2025]

On 13 January 2026, the Munich LD granted Heraeus Reestablishment of Rights (RoR) after it missed the r. 151 deadline to apply for a cost decision, determining that the failure resulted from an excusable legal misjudgment in an unclear area of procedural law.

Heraeus’ made an application for RoR under r. 320 RoP after missing the one-month deadline in r. 151 RoP to file its own application for a cost decision, following the earlier judgment of 10 October 2025 allocating costs 60% to Heraeus and 40% to Vibrantz. Vibrantz filed its cost application on time; Heraeus did not.

Heraeus explained that its representative had not recorded the deadline because they believed that, as the “net payer” under a mixed cost apportionment, they did not need to lodge their own application. When Vibrantz later argued that Heraeus’ application was out of time, Heraeus filed for reestablishment, submitting that the deadline had been missed due to an excusable legal misinterpretation.

The Court confirmed that missing a r. 151 deadline can only be remedied through r. 320 RoP reestablishment. RoR is a remedy that allows a party to regain a procedural right lost because a deadline was missed, but only where the party acted with all due care and the failure occurred for reasons outside its control. Granting reestablishment lets the Court treat the late filing as if it had been submitted on time, preventing the automatic loss of that right. It also held that the full panel, not the judge rapporteur alone, is competent to decide such applications, based on the need to reconcile the differing language versions of r. 320 RoP and to ensure legitimacy in non-appealable decisions.

The panel found Heraeus’ application admissible: it was filed within the one-month period required by r. 320 RoP, and the omitted act (its cost application) had been completed. The key question was whether Heraeus’ failure occurred “despite all due care”.

Here, the LD provided an important clarification. It acknowledged that, although parties and their representatives are generally expected to be fully aware of procedural requirements, the RoP do not clearly state that both parties must file cost applications where a cost ratio is set. There was no established UPC case law on this issue, and commentary was not decisive. In light of this genuine legal uncertainty, the panel accepted that Heraeus’ misunderstanding was an excusable error, not a lack of diligence. The panel granted Heraeus RoR, allowing its late cost application to proceed. The order is final and not open to appeal.

A dissenting opinion argued that reestablishment was unnecessary because Heraeus was not seeking a cost decision but merely raising defensive offsetting arguments permitted under r. 156 RoP. The dissent expressed concern that the majority’s interpretation could create unnecessary procedural burdens by encouraging parties to file cost applications in every mixed costs case purely to preserve their position. 
 

New episodes: You, Me and the UPC: Case by case

Episode 25: Medical Devices must align with Professional Standards to Constitute Patent Infringement.

Episode 26: Paris Central Division rejects inadmissible Auxiliary Requests in Microsoft v Suinno.